Supreme Decree adopting the grading, methodology and factors for the determination of fines imposed by INDECOPI’s resolutive bodies is enacted
On Thursday, February 25, 2021, Supreme Decree N° 032-2021-PCM was published in the Official Gazette “El Peruano”, which adopts the grading, methodology and factors for the determination of the fines imposed by the resolutive bodies of INDECOPI with respect to the infringements punishable within the scope of its jurisdiction (hereinafter referred to as “DS 032″ or “Decree“).
In general terms, among the most important points set forth in the Decree are the following:
– The DS 032 shall enter into force on the same day as Law No. 31112, Law that establishes the prior control of business concentration operations and whose validity depends on the publication of its respective regulation.
– The grading and determination of fines for administrative sanctioning proceedings that are in process when the Decree enters into force shall continue to be governed by the regulations in force at the date of initiation of proceedings.
– The grading, methodology and factors for the determination of the approved fines shall be evaluated by the Board of Directors of INDECOPI every three years and the corresponding update shall be issued through a Supreme Decree countersigned by the Presidency of the Council of Ministers.
The proceeding for calculating the fines provided for in DS 032 is as follows: the preliminary fine (M) is the result of multiplying the estimated value of the basic fine (m) by a component that captures the effect of aggravating and mitigating circumstances (F), then, this amount (M) is adjusted according to the maximum limits until a final fine (M*) is obtained.
The regulation establishes a methodology for calculating the basic fine according to the subject matter of the administrative sanctioning proceeding. Thus, depending on the subject matter and the sanctioning body, the Decree provides that one of the following three methods must be used for the calculation of the fine: (i) Method based on pre-set values; (ii) Method based on a percentage of the sales of the product or service concerned; or (iii) Ad hoc method.
The methods applicable according to the subject matter dealt with by each sanctioning body are as follows:
