Argentina: Planning An Exit Strategy: Recent Developments On Commitments Before The Antitrust Commission

Last Updated: 6 November 2012
Article by Alfredo M. O'Farrell and Miguel Del Pino

The recent issuance of decisions accepting commitments offered by alleged infringers to cease anticompetitive conducts shows the interest of the Argentine Antitrust Commission in these types of procedures reserved to conducts of minor significance.

1. Introduction

During June 2012 the Secretary of Domestic Trade ("SDT") issued three resolutions concerning investigations initiated by the Argentine Antitrust Commission (the "Commission") based on complaints filed as a result of alleged anticompetitive conducts.

In all three cases, the SDT decided (upon the recommendations issued by the Commission on the matter) to accept the commitments offered by the alleged infringers: to suspend the investigation for the term of three years and to empower the Commission to take the necessary measures to monitor the compliance of the undertaken commitments by the alleged infringing parties.

Based on the Commission's considerations that resulted in the acceptance of the commitments proposed by the alleged infringers, it can be seen that infringing parties will have to carry out a risk analysis between the commitments that could be undertaken pursuant to the provisions of Section 36 of the Argentine Antitrust Law (the "Antitrust Law") and the upcoming leniency program as considered in the Bill to amend the Antitrust Law (the "Leniency Program").

2. Investigation of Anticompetitive Conducts and Section 36 of the Argentine Antitrust Law

Any person, whether private or public, is entitled to file a complaint with the Commission submitting a specific description of the complaint's purpose, the facts that support the complaint and a summary of the applicable law.

Accusations may be automatically dismissed if the Commission concludes that the alleged infringement does not fall within the legal description of restrictive practices. Otherwise, the accusation must be notified to the alleged infringer, who must submit explanations and comments and provide any evidence it may deem appropriate.

If the explanations are regarded as conclusive, the accusation may be dismissed. To the contrary, the Commission must continue the investigation. During the investigation period the alleged infringer is entitled to attach evidence.

Pursuant to the provisions of Section 36 of the Antitrust Law, the alleged infringer may propose a "commitment" entailing the immediate or gradual cessation of the actions which originated in the accusation; such commitment can be submitted at any time prior the Commission's issuance of a resolution on the matter. If the proposal is accepted, the investigation is automatically suspended and the Commission must supervise compliance with the terms of the undertaken commitment.

In the absence of a commitment, or dismissal thereof, or noncompliance therewith, and upon completion of the investigation, the Commission may impose the following sanctions:

  1. cease and desist orders;
  2. fines that can range from AR$ 10,000 (approximately US$ 2,200 at the current exchange rate) to AR$ 150,000,000 (approximately USD 33,300,000 at the current exchange rate) depending on the losses suffered by all the aggrieved parties, the benefits arising from the illegal conduct or activity and value of the assets involved. Those fines may be doubled if it is a recurrent infringement;
  3. compliance with conditions aimed to neutralize distortive effects of competition including a request to the competent judicial court to decide dissolution, liquidation, divestment or spin-off of infringing companies.

Lastly, if the commitment is not honored, the alleged infringer may be fined for the sum of AR$ 1,000,000 a day (approximately USD 2,200,000 at the current exchange rate), aside from any sanctions that could be imposed by the Commission if the denounced conduct is finally proved.

3.Recent Commission Decisions on Commitments

During June 2012, the SDT issued three resolutions concerning investigations initiated by Commission based on complaints filed by third parties.

In all three cases the complainants invoked the legal figure of "abuse of dominant position" in some of its forms, namely:

  1. In Case No. S01:0468538/2010 "PBB POLISUR S.A. re. breach of Law No. 25,156" (C. 1369) the complainant invoked abuse of dominant position of PBB which resulted in the negative to sell ethylene, necessary to the complainant's manufacturing of Polypropylene.
  2. In Case No. 064-003812/2001 "Federación Médica de Formosa y Asoc. de Clínicas y Sanatorios Privados de Formosa re. breach of Law No. 25,156", the Healthcare Professionals Association of Formosa denounced both the Medic Federation of Formosa and the Clinics and Private Hospitals Association of the Province of Formosa since these last two associations suspended or excluded as members those doctors that entered into agreements with other healthcare organizations.
  3. In Case No. S01:0143861/2010 "Cervecería y Maltería Quilmes S.A.I.C.A. y G. and Agencia Córdoba Deportes S.E. re. breach of Law No. 25,156" (C. 1332) the complainant argued that Quilmes (licensor of Pepsi in Argentina at that time) and the Directive Board of soccer team Club Atlético Talleres de Córdoba entered into an agreement which excluded all competition, particularly the possibility of advertising and selling products, in the premises of the Chateau Carreras soccer stadium.

While the legal basis argued by the complainants is not relevant to the present analysis, the considerations the Commission had at the moment of issuing its resolutions accepting the commitments filed by the defendants (some of them with the previous acceptance of the complainants) sheds light on its view on commitments.

Thus, the Commission considered that:

  • "[...] the legal figure set forth in Section 36 of Law No. 25,156 should not be automatically granted, being reserved only for those cases in which the irrelevance of the conduct under analysis, measured by the near inexistent prejudice to the general economic interest [...] makes advisable to use this useful tool provided in the Law".
  • "Law No. 25,156 grants the possibility to the Pertinent Authority to accept the commitment offered by the alleged infringer with the purpose of suspending the procedure initiated against the latter".
  • "This Commission understands that the legislator's intention was, in certain circumstances, to privilege the function of promoting the defense of competition and preventing harmful conducts against it, rather than the continuance of a proceedings that might result in the sanction imposed by virtue of an infraction allegedly performed. Considering such intention, it is possible to suspend the procedure on probation, by means of the effective fulfillment of the commitment undertaken by the alleged infringer".
  • "In this sense, the alleged infringer must recognize, at least in a vague manner, the conducts of which it is accused of committing, should its intention be to suspend the continuance of the proceeding [...]".
  • "In this order of ideas, the suspension of the proceedings is entirely up to the defendant's decision, [...] if [the suspension] is not granted the sole legal consequence is the continuance of the proceedings".
  • "In order to accept the commitments set out under Section 36 of Law No. 25,156 it should be considered that such commitments must contribute to the solution of the alleged infringement, provided that the elements and evidence produced in the proceedings until the moment the commitment is submitted [...] do not lead to the conclusion that the alleged anticompetitive conduct has had a negative effect on the general economic interest already".

4. Leniency Program

On December 15, 2010 the Commission passed Resolution No. 157 by means of which it placed under the consideration of the SDT a draft bill to amend the Antitrust Law by including the so-called "Leniency Program" (the "Bill"). Said Bill is now under consideration of the Congress.

The Bill sets out two different scenarios for infringing parties, namely an exemption one and a reduction one, both based on a "race-to-the-door" structure.

Infringing parties must comply with the following requirements in order to obtain an exemption of the sanctions set out by the Antitrust Law: (i) to be the first party, among the participants of the conduct, that provides the Commission with information and evidence, either in the event that the Commission has not initiated an investigation or if the Commission has initiated an investigation, but has not been able to gather sufficient evidence; (ii) must immediately cease with the performance of the infringing conduct, unless the Commission deems otherwise in order to preserve the investigation; (iii) must collaborate until the end of the investigation; (iv) must not destroy, forge or hide evidence of the anticompetitive conduct, nor make public the fact that it has filed for a Leniency Program, unless such communication is to another antitrust regulator and (v) must not be the leader of the anticompetitive conduct.

Those parties that would not be the first ones to require the enforcement of the Leniency Program could request for a reduction of the sanctions, if they are able to meet the remaining requirements and provide the Commission with useful information for the investigation. The Bill sets out that the reduction could be of 20%, 30% or 50% of the sanction.

The reduction ratios are to be determined by the Commission by taking into account the chronological order of the filing, as well as the number of participants involved in the conduct. Should the conduct be performed by three members, the reduction of the fine to the first requesting party would be of 50%, if the conduct is performed by four parties, the second requesting party's diminishment of the fine would be of 30% and if the conduct involves at least five parties, the diminishment of the fine pertaining to the third requesting party would be of 20%.

5. Commitments and Leniency Program

Although both legal figures may be considered as similar, the commitments set forth in Section 36 should not be confused with the effects that the Leniency Program would grant.

Hence, Section 36's commitments can be proposed by the alleged infringer once the investigation has commenced, while the Bill establishes that the first alleged infringer providing the Commission with information and evidence can do so either in the event that the Commission has not initiated an investigation or if the Commission has initiated an investigation, but has not been able to gather sufficient evidence.

Another difference would be that it does not matter how many alleged infringers commit to the cessation and modification of the alleged anticompetitive conduct; as long as the Commission approves the commitment undertaken by the alleged infringers, all of them could avoid the sanctions set forth in the Antitrust Law.

On the contrary, as stated before, the Bill sets out two different scenarios for infringing parties: an exemption one and a reduction one, both based on a "race-to-the-door" structure, meaning that only the first alleged infringer would be "exempted" from the sanction that could be imposed to it and the rest of the alleged infringers would see their sanctions gradually reduced based on the chronological order they confess their involvement in the anticompetitive conduct.

As stated in Section 3 above, the Commission considers that the commitments set out in Section 36 if the Antitrust Law should be reserved only to those cases deemed irrelevant or of no great importance; importance that would be measured by the harm to the general economic interest using the evidence attached until the moment the commitment proposal is submitted.

The aforementioned principle is of no application to leniency, which can be invoked in major cartel investigations.

Despite these differences, there is one similarity between the commitments set forth in Section 36 of the Antitrust Law and the Leniency Program (apart of the avoidance of the fines and/or remedies that could be imposed by the Commission): in both cases the alleged infringers are recognizing in some degree that their conducts were contrary to the provisions of the Antitrust Law.

As such, in both cases said admission could trigger third party damage claims or even a criminal investigation under Section 300 of the Argentine Criminal Code.

6. Conclusion

It can be observed that the commitments set forth in Section 36 of the Antitrust Law and the Leniency Program have some level of similarity, especially if it is taken into account that both are designed to provide infringing parties with the possibility of ceasing the anticompetitive conduct and avoid the fines set out in the Antitrust Law.

Notwithstanding the abovementioned, while the commitments are reserved to rather insignificant conducts, the Leniency Program would be of application to major ones.

As such, it can be seen that commitments are conceived as a way of easing the workload of the Commission in non-significant anticompetitive cases, while the Leniency Program is designed to unveil collusive practices and to promote major anticompetitive investigations.

The recent issuance of decisions on commitments shows the interest of the Commission in these types of procedures, which helps it to focus on major investigations, while alleviating its workload.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions