Antitrust Enforcement in Argentina Under Stricter Judicial Scrutiny

Julian Pena, Jul 14, 2010

In the past couple of years, the courts have become increasingly stricter when reviewing decisions taken by the antitrust authorities in Argentina. Although historically the courts of appeals have sometimes overturned fines imposed by the antitrust authorities, in recent months different courts of appeals have questioned certain powers of either the Comisión Nacional de Defensa de la Competencia (“CNDC”) or the Secretariat of Domestic Trade (“SDT”) and have even annulled several decisions taken by such agencies. These court decisions have been taken both in anticompetitive behavior investigations as well as in merger control cases and most of them relate to cases that are still in the pipeline.

Although the courts have always played an important role in antitrust cases and have revoked different CNDC and SDT decisions on grounds of insufficient evidence, the type of control exercised by the courts in recent times goes further since it even questions the CNDC’s and the SDT’s power to take decisions. This process started in 2003 with the “judicialization” of antitrust enforcement due to the institutional fragility derived from the lack of implementation of the Tribunal Nacional de Defensa de la Competencia (“TNDC”), an independent agency created by law in 1999 to replace the CNDC that even today has not yet been implemented.

The greater importance of competition cases (much higher fines and important merger cases) has forced the courts to a stricter scrutiny of the decisions taken by the Argentine antitrust enforcers.