INDECOPI publishes draft Guidelines on compensation for damages caused to consumers as a result of anticompetitive conduct
On August 31, 2020, INDECOPI published for comments the draft “Guidelines on compensation for damages caused as a result of anti-competitive conduct” (the “Draft”). According to the information published on INDECOPI’s official website, comments from interested subjects may be submitted until October 30, 2020.
The purpose of the Draft is to establish the terms, rules, conditions and restrictions for the exercise of the power of the Commission for the Defense of Free Competition of INDECOPI (the “Commission”) to promote judicial proceedings for compensation of damages derived from anticompetitive conduct, pursuant to Article 52 of the Single Ordered Text of the Law for the Repression of Anticompetitive Conduct (“Competition Law”).
Among the main aspects proposed by the Draft, the following must be highlighted:
1. Objective scope of application.- The Commission’s power to promote judicial proceedings for compensation of damages may be exercised once the administrative resolution declaring the existence of an infringement to the Competition Law has been signed, after having received a favorable report from its Technical Secretariat.
2. Subjective scope of application.- Damage compensation proceedings may be initiated against subjects declared responsible for the anticompetitive conduct by means of a firm administrative resolution, either (i) subjects offering or demanding goods or services in the market or whose associates, affiliates, union members or members carry out said activity; (ii) subjects directing, managing or representing the aforementioned subjects, to the extent that they have participated in the planning, execution or performance of the infringement; and/or (iii) natural or legal persons who, without competing in the market where the conduct takes place, act as planners, intermediaries or facilitators of an infringement subject to the absolute prohibition.
The Commission shall not exercise the power to initiate such proceedings against subjects that qualify as applicants for Type A Clemencies, leaving aside the rights of the injured persons and the relevant consumer associations.
3. Determination of affected consumers.- The favorable technical report of the Technical Secretariat of the Commission must identify the group of affected consumers, being sufficient a “duly motivated reasonable estimate”.
4. Limitation period.- The action to file the claim for compensation for damages prescribes two (2) years from the date of the final administrative resolution declaring the existence of the anticompetitive conduct.
5. Advertising and the right of exclusion.- Once the admission of the claim for damages has been notified, the Technical Secretariat of the Commission shall issue a communication through the official website of INDECOPI and one of its social networks, within a maximum of ten (10) working days, indicating the main information of the proceeding.
Such publications, “when the Technical Secretariat of the Commission deems it necessary” shall indicate the right of consumers to exclude themselves from the effects of the judicial proceedings. The exercise of this right of exclusion, by one or more consumers, shall not impair the Commission’s legitimacy to promote the judicial process, without prejudice to the fact that the relevant judge is informed so that it may be considered in the quantification of the compensation amount.
6. Execution.- If the claim for damages brought by the Commission is protected or if a transaction is reached, the execution of the compensation sentence must seek to follow the following mechanisms: (i) direct compensation in favor of the identified consumers; and (ii) if direct compensation is not possible or if there is a balance in the compensation fund, indirect compensation through transfers in favor of one or more non-profit legal entities duly selected by the Commission.
7. Legitimation of consumer associations.- The Commission, after a favorable report from its Technical Secretariat, may delegate its power to initiate judicial proceedings for compensation for damages to consumer associations duly recognized as such and at their initiative.
8. Judicial proceedings in process.- The adopted guidelines shall be immediately applicable, including to judicial proceedings in process.
For further information, please do not hesitate to contact Verónica Sattler (vsattler@estudiorodrigo.com), Laura Zúñiga (lzuniga@estudiorodrigo.com) and/or Francisco José Floríndez (fflorindez@estudiorodrigo.com).
