Antitrust Alert – June 2019

Publication for comments on the bill amending Legislative Orders No 1033 and No. 1034

On June 21, Ministerial Order No. 225-2019-PCM was published where it is acknowledged the bill (“Bill”) amending the Legislative Orders No 1033 and No. 1034 (“Legislative Orders”).

Interested parties to send comments on the Bill may make it until July 21, 2019 by email addressed to: presidencia@indecopi.gob.pe.

Proposed amendments on the Bill are intended to empower the Technical Secretary of the Free Competition Defense (“Technical Secretary of the Free Competition Defense” or “Secretary’s Office”).

Therefore, the pertinent Specialized Division of the Appeal Court of the National Institute for the Defense of Free Competition and Protection of Intellectual Property (INDECOPI) (“Division”) is appointed as the court of first and last resort to decide free competent regulations violation proceedings (i.e. collusions or abuse of dominant position), and concentration authorizations in Electricity Sector.

Consequently, the Commission on Free Competition as a deciding body of first instance for such proceedings is removed.

In this context, the Bill suggests, among others, the following amendments to the Legislative Orders:

• The Secretary’s Office is appointed as investigation, promotion, free competence defense and charging body.
• The Technical Secretary of the Free Competition Defense shall evaluate and approve proposals submitted within the framework of a commitment to cease and, if applicable, enforce timely such commitment.
• It is provided that, for blocking documents, correspondence or records, it will be sufficient the written reasoned decision by the Secretary’s Office.
• Notwithstanding provisions of Item (i), the Division may have its own technical secretary’s office that may not be empowered to charge but shall be only a support body.
• The Division is given a 90-business-day term to issue a final decision in relation to the investigated conduct.
• The Division is the only administrative instance responsible for issuing a decision on the requests for previous concentration authorization, and if necessary, issuing measures provided by Act No. 26876.
• Proceedings initiated prior to the enforcement date of the Bill will be dealt with in compliance with the procedural provisions until having no other administrative appeal.
• If approved, the Bill will be come into effect within 4 months after its publication in the Official Gazette “El Peruano”.

For further details please contact Verónica Sattler (vsattler@estudiorodrigo.com), Ítalo Carrano (icarrano@estudiorodrigo.com) and/or Laura Zúñiga (lzuniga@estudiorodrigo.com).