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Antitrust Alert – May 2021

ALERT - ANTITRUST

INDECOPI PUBLISHES GUIDELINES ON COMPENSATION FOR DAMAGES CAUSED TO CONSUMERS AS A RESULT OF ANTI-COMPETITIVE BEHAVIOR

On May 18, 2021, Resolution N° 007-2021/CLC-INDECOPI was published in the Official Gazette “El Peruano”, which apdopts the “Guidelines on compensation for damages caused to consumers as a result of anti-competitive behavior” (“Guidelines“).

The purpose of the Guidelines is to establish the deadlines, rules, conditions and restrictions for the Commission for the Defense of Free Competition of INDECOPI (“Commission“) to exercise the discretionary power provided for in Article 52 of the Law for the Repression of Anti-competitive Behavior to promote judicial proceedings for compensation of damages arising from anti-competitive behavior, in defense of the diffuse and collective interests of the affected consumers.

Among the main aspects of the Guidelines, the following stands out:

– The term for the Commission to file a claim for damages is two (2) years after the administrative resolution declaring the existence of the anti-competitive behavior becomes final. The term shall begin to be computed once the challenges filed by the parties involved have been resolved or the corresponding judicial process has concluded. 

– In the event that there are several parties responsible for the anti-competitive behavior declared by a final resolution, all of them shall be jointly and severally liable for the damages caused. The existence of a final resolution with respect to one or some of the responsible parties shall be enough so that a claim for compensation for damages may be filed only with respect to them.

– The notion of consumers provided for in the Guidelines only includes the final and direct purchasers of the goods and/or services that have been the subject of the identified anti-competitive behavior.  

– The submission of a claim for damages by the Commission shall not limit the right of the affected consumers to file their own claims before the Judiciary, for which they must request their exclusion from the proceedings promoted by the Commission within thirty (30) working days from the publication of the summary of the claim.

– The Commission shall prioritize the filing of lawsuits in cases of horizontal collusions subject to absolute prohibition (cartels) and shall not exercise this power against infringers under a Type A Leniency, leaving aside the right of the affected people to file lawsuits against such infringers. The other beneficiaries of the Leniency Program may be sued by the Commission.

The guidelines are published at the following link: https://www.indecopi.gob.pe/documents/51771/7336153/Lineamientos+sobre+resarcimiento+a+consumidores+por+conductas+anticompetitivas/

For further information, please contact Verónica Sattler (vsattler@estudiorodrigo.com), Francisco José Floríndez (fflorindez@estudiorodrigo.com) y/o César Carrillo (ccarrillo@estudiorodrigo.com).