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Calendar of activities. Competition assessment toolkit. Fighting bid rigging in public procurement. Reports by the Competition Committee. Also, our starting point is that the service of effective prison time for those executives participating in cartels is a common tool for deterrence of said activities in several jurisdictions. We also assume that the criminalization of cartels, while possibly convenient, is debatable since in many countries, particularly those with Continental Law traditions, it may not be the best alternative since it may substantially hinder the effectiveness of the competition system itself.
Chilean competition law did in fact punish executives who participated in cartel cases with prison time, but such punishment was removed from our legislation almost a decade ago. While it was in force, its track record was hardly memorable. Not a single conviction existed. Not once was criminal liability ever sought. When the proposed bill is enacted, which is expected to happen in , we will have a brand new ChCA.
Working in the CMA's Antitrust and Cartels teams - Competition and Markets Authority
As it stands we must ask ourselves if adopting measures that exist in other more developed countries than ours assure us that in the end we will have a better, more effective competition system in Chile? These new amendments, which are certainly well-intended, will indeed foster competition in the Chilean markets? These are the questions that we believe ought to be asked and fairly responded prior to proposing and enacting amendments to the ChCA which, regardless of its generality, has thus far and particularly in the last couple of years worked quite well, a fact that has been internationally recognized.
As of this date, the Economic Prosecutor's Office has seldom sought the maximum fine for cartel cases and, even when sought, the Chilean Competition Court has rarely ever imposed it. The two cases in which the maximum fines were sought and applied were those involving cartels in the pharmacies and poultry markets.
However, we agree that the existing cap for fines, even if hardly ever used, may pale in comparison to the benefits obtained by the cartelized companies. This much we may perfectly concede. Now and even whilst all of this may be true, we do not share the popular conspiracy theories involving CEOs and Boards of Directors secretly gathering, calculators in hand, playing the whole thing out, calculating the cartel profits on the one hand and on the other hand estimating the fines and damages to be paid…if caught, or rather if caught and convicted…on the other.
Such depictions belong in a John Grisham novel…and its big screen adaption. They do not belong in Congress. Our competition regulation must be based on objective data, international experience, national idiosyncrasy, recognized economic principles and, above all, the rule of law. We do not dismiss the possibility of cartels or anticompetitive conducts being intentionally executed. Of course they exist, though it is more likely that they are the result of intricate and sophisticated commercial practices carried out by executives for decades, without any real questioning on their legitimacy, who are also oblivious of competition regulation or to the very least cartel cases will seldom be overt cartel cases anymore but rather the result of complex economic inferences and deductions.
Regardless of the more or less sinister origins of current cartel cases or anticompetitive infringements, legislation must be grounded on unbiased objective premises, devoid of prejudice and discrimination.
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As Aristotle once said "law is reason, free from passion". If the lump sum standard has become obsolete, so be it. Let us replace it.
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Not because of the ignominious calculator of a fictional executive has one too many zeros on one hand and not on the other, but because we have found better ways in which to measure economic benefits arising from cartels and anticompetitive infringements and the damages inflicted to society. A revision of the current fine caps provided by the ChCA in order to eliminate the lump sum standard and to introduce a variable ceiling standard is both healthy for the competition system as a whole and a much more pragmatic and proportional way in which to punish infringements to competition law.
It is also a common international practice for developed countries to whom we look-up-to in regulatory matters.
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That being said, the modification proposed by the Chilean government to the CHCA in relation to the fines is yet to be considered anything more than a diamond in the rough. Some of the problems we have found arising from the current phrasing of the reform are:.
Cartels and anti-competitive agreements
The first omission may easily lead, and will probably lead, to the imposition of fines for multinational companies convicted for participating in cartels calculated on a worldwide turnover basis. Our understanding is that the Chilean government wishes to emulate E. If that is the case, just as E. We believe this omission may lead to disproportional judicial decisions.
In Chile, for instance, a cartel that lasted ten years may be prosecuted, under the statute of limitations of the ChCA, up to five years after the cartel has ceased to produce any anticompetitive effects. The reform to the ChCA could possibly allow our competition authorities to prosecute an eventually impose fines to the cartelized companies considering, for the imposition of the penalties, the benefits obtained for the cartel for the whole ten years the cartel lasted.
Our opinion is that this omission goes against the legal principle of judicial certainty which is recognized through the statute of limitations. If under due process of law an authority cannot prosecute nor convict crimes or offenses beyond a certain period of time, then said authority should not have any legal grounds to impose fines calculated on time that has been excluded from its own prosecution and judicial powers.
Infringements to competition law, such as cartels, must be punished. Of course. However, one must give some thought to the possibility that the nominal punishment introduced becomes a death sentence. Competition must be protected.
Justice must be made. But in our zeal for competition law, let us be weary, as the old saying: "Fiat justitia, et pereat mundus".
Finally, the bill aimed at amending the ChCA, with the explicit purpose of deterring cartels, does however contemplate just one "fine system" regardless of the anticompetitive conduct detected, prosecuted and punished. We all know that, at times, competition law can be quite "obscure", i.
Thus, should the law not be reasonable in and by itself rather than rely on the more or less reasonable application given to it by the competition authorities? Criminal penalties for cartel cases are being introduced in our competition system once again. Almost a decade ago, prison time as punishment for cartel cases existed in our country and it was probably the one tool our competition authorities never used. However and as Beccaria once said, punishment must be proportionate to the crime and should not be retributive in nature.
Of course, current politics hardly analyzes such philosophical requirements when public outcry is knocking at the door and yet, as lawyers, it is or should at least be our duty not to be serfdom to the views and opinions which may be popular at any given time, because part of our duty is to uphold the law and what the law stands for.
Hence, we will provide a few basic arguments as to why we believe reinstatement of criminalization in our country, at least in its current drafting , may be considered a mistake:. As competition lawyers we are aware that in many jurisdictions worldwide people participating in cartels are in fact punished, at least in theory, with prison time.
The gradual criminalisation of cartel behaviour
However, we are also aware that in such jurisdictions the maximum prison time established by law, as with any other crime, is usually only used to leverage some sort of agreement between the prosecutor and the criminal in exchange for his cooperation aimed at the ultimate success of the competition investigation and prosecution. We are hosting an open evening in London, 10 October Please come along if you are interested in joining us and would like to learn more.
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