General Instructions

A general instruction (instrucción de carácter general) is the result of a regulated, public, and participatory procedure through which the Tribunal de Defensa de la Libre Competencia (TDLC) issues guidelines aimed at establishing rules of general applicability for private parties regarding acts or contracts that may restrict, prevent, or hinder free competition (REGCOM, 2013, p. 4). Consequently, part of the legal doctrine has noted that, when exercising this regulatory power, the TDLC becomes a “trade regulatory body,” similar to an administrative body (REGCOM, 2013, p. 5).

The procedure for general instructions is regulated by Article 18 No. 3 of DL 211, which states that the TDLC: ” shall have the following powers and duties: (…) 3) To issue general instructions in accordance with the law, which must be considered by private parties in the acts or contracts they execute or enter into that relate to free competition or could undermine it.”

The procedure for the issuance of a general instruction is subject to the same rules as non-adversarial procedures before the TDLC, by express provision of Article 31 of DL 211.

The power to issue general instructions is a discretionary power of the TDLC; therefore, its effective use is subject only to the Court’s authority, and the Court is not required to open a procedure for its issuance if does not deem it fit to do so (H. TDLC Resolution, September 27, 2021, Case Roll No. NC-500-21; and Supreme Court Judgment, Case Roll No. 30.190-2014, c. 9°).

The TDLC has stated that administrative bodies do not fall under the definition of “private parties” (particulares), and therefore general instructions would not be applicable to them (H. TDLC Resolution, December 24, 2020, Case Roll No. 482-20). Along these same lines, part of the doctrine has indicated that the term “private parties” would not encompass public bodies exercising their authority, but would include public institutions performing business activities (Velozo and González, 2011, pp. 50-52).

However, the Supreme Court has interpreted the term “private parties” broadly, ruling that general instructions should apply to public entities, such as municipalities, and private parties (Supreme Court Judgment, Case Roll No. 22.271-2021).

The final resolution of a general instruction procedure is subject only to a motion for review (recurso de reclamación). In this regard, the Supreme Court has understood that: “this last paragraph of Article 31 establishes a single distinction between resolutions that are not final and reports —regarding which only a motion for reconsideration (reposición) applies—and those final resolutions, whether or not they set conditions, for which the legislator reserves the motion for review. It should be noted, then, that from the literal text of this rule, it is not possible to infer that the use of the term ‘resolutions’ refers only to rulings issued under number 2 of Article 18, as the aforementioned precept did not make such a differentiation” (Supreme Court Judgment, Case Roll No. 10.557-2014). In other words, the Supreme Court has deemed it fit to review general instructions.

Furthermore, the Constitutional Court has understood that the limitation on this power of the TDLC: “constitutes a discussion within the sphere of legality, as it is the court of merit that must determine if the TDLC, in issuing the appealed act, has exceeded its jurisdiction or acted arbitrarily” (Constitutional Court Judgment, Case Roll No. 105.997-2022).