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In the field of antitrust, an adversarial procedure (procedimiento contencioso) takes place when the National Economic Prosecutor’s Office (Fiscalía Nacional Económica) or a private party alleges that a specific fact, act, or convention has infringed upon antitrust regulations. Anti-competitive behaviors may consist of collusion, abuse of a dominant position, predatory practices, unfair competition, interlocking and gun jumping.
The passive subject of the adversarial procedure is broad in nature, and may include one or more private economic agents, natural persons, or state administration bodies.
The adversarial procedure is regulated between Articles 18 No. 1 and 30 of DL 211. Furthermore, the rules of Books I and II of the Code of Civil Procedure (CPC) apply to it in all matters not inconsistent with it (Article 29 of DL 211).
The Tribunal de Defensa de la Libre Competencia (TDLC) is the jurisdictional body responsible for resolving the specific case, as Article 18 of Decreto Ley 211 (DL 211), the antitrust law, states. If anti-competitive conduct is identified, the TDLC may impose the sanctions established in Article 26 of DL 211. This procedure is governed by the principle of officiality (principle of ex officio), whereby the Court must drive the procedure forward on its own motion until its final resolution (however, it cannot initiate the procedure ex officio). Furthermore, this procedure is written, with the exception of the court hearing (vista de la causa), and is public.
The adversarial procedure is written and includes the stages of discussion, evidence, and judgment.
This procedure must necessarily start at the request of a party, either through an action by the National Economic Prosecutor’s Office, where it takes the name of a “complaint” (requerimiento), or by a person with a legitimate interest, in which case it is called a “lawsuit” (demanda).
Notwithstanding the above, the Court may resolve the execution of pre-trial measures (medidas prejudiciales) before notifying the person against whom they are issued, when there are serious grounds for doing so.
Once the lawsuit or complaint is filed, the TDLC performs an in limine review of certain formal requirements, such as compliance with the requirements for lawsuits in Article 254 of the CPC, and that there is a clear and determined presentation of the facts and the markets affected by the alleged infringement (Article 20 of DL 211).
Upon admission of the complaint, the court will direct that the defendant be served. The defendant or respondent will have a period of 15 days to respond (evacuar el traslado), a period that may be extended to 30 days at the request of a party and by resolution of the TDLC (Article 20 of DL 211). Before the expiration of the aforementioned summons period, dilatory exceptions (excepciones dilatorias) may be filed and the answer (contestación) formulated. In addition to the substantive defenses, peremptory exceptions (excepciones perentorias) deemed pertinent may also be filed in the answer.
Unlike other civil proceedings, this procedure does not provide for a Reply (réplica) or a Rejoinder (dúplica).
Upon expiration of the service period, and regardless of whether the defendants have filed a response, the TDLC may initiate a settlement phase (conciliación) if it deems it appropriate. Should a settlement be reached, the Court must determine whether its terms are consistent with free competition standards (Article 22 of Decree Law No. 211).
If a settlement is not called upon, or if it’s called upon but there is no agreement between the parties, the court will proceed to analyze, through an interlocutory resolution (resolución interlocutoria), whether there are substantial, pertinent, and controversial facts for which it is necessary to present evidence through the means of proof permitted by law (Article 22 of DL 211). The Court will evaluate this evidence according to the rules of sound criticism (sana crítica), that is, through rules of logic, maxims of experience, and scientific evidence.
If the TDLC determines the existence of such facts, it will accept the presentation of evidence for a discovery period (término probatorio) of 20 business days. Once this discovery period has expired, the Court will declare it so and order the case to be set for hearing (“traer los autos en relación”), fixing the day and time for the court hearing (Article 23 of DL 211). If such substantial, pertinent, and controversial facts do not exist, it will summon the parties to the court hearing.
It should be noted that the Court, either ex officio or at the request of a party, may decree at any stage of the trial or prior to its initiation all precautionary measures (medidas precautorias) it deems necessary to prevent the harmful effects of the conduct brought to its knowledge and to protect the common interest (Article 25 of DL 211).
Within a period of 45 days from the time the proceedings are ready for judgment, the Court must issue a final ruling, and may acquit the investigated party/parties or convict them with one of the measures contemplated by law (Article 26 of DL 211) which consist of fines and structural or behavioural remedies.
Against this final sentence, a motion for review (recurso de reclamación) may be filed, which will be heard by the Honorable Supreme Court. This motion must be filed within a period of 10 business days starting from the respective notification (Article 27 of DL 211).
The TDLC is responsible for the execution of resolutions issued during an adversarial procedure, and for such purposes shall have all the powers of a court of justice (Article 28 of DL 211). Any action for damages (indemnización de perjuicios) resulting from the issuance of an enforceable final judgment in this type of procedure shall be filed before the same court (Article 30 of DL 211).
