Reform of the Law for the Defense and Promotion of Competition (2015)

Reform Decree No. 357-2005 dated December 16, 2005, containing the LAW FOR THE DEFENSE AND PROMOTION OF COMPETITION, by adding the following new articles: 51-A, 51-B, 51-C, 51-D and 51-E; 63-A, 63-B and 63-C, which shall be read as follows:

EXEMPTION FROM PAYMENT OF FINES. Without prejudice to the provisions established in Articles 6, 49, 50 and 51 of this Law, the Commission must exempt an economic agent involved in restrictive practices prohibited by their nature as established in Article 5 of the Law, from the payment of the fine that could have been imposed upon it when:

• 1)

  It is the first to provide sufficient evidence that, in the judgment of the Commission, permits it to order the development of a request for information, investigation and inspection in the terms established in Articles 46, 47 and 48 of this Law regarding the procedure for requiring information, in relation to restrictive practices prohibited by their nature such as cartels, provided that at the time such evidence is provided, there are not sufficient elements to order said procedure, or;

• 2)

  It is the first to provide sufficient evidence that, in the judgment of the Commission, permits it to verify a practice of Article 5 of this Law in relation to restrictive practices prohibited by their nature such as cartels, provided that, at the time the evidence is provided, the Commission does not have sufficient evidence to establish the existence of the violation and an exemption has not been granted to an economic agent pursuant to subsection 1) of this Article. The partial or total waiver of fines in accordance with the provisions of this Article and Articles 51-B, 51-C and 51-D does not exempt the agent from any other administrative, civil or criminal liability that corresponds by Law. Administrative clemency must be requested in writing by the interested party and granted by resolution of the Commission after verifying compliance with the requirements demanded by this Law. The Commission must maintain confidentiality regarding the sources of information derived from the granting of administrative clemency.

REQUIREMENTS FOR EXEMPTION. For the Commission to grant the exemption provided in the preceding Article, the economic agent that has submitted the corresponding request must comply with the following requirements:

• 1)

  Cooperate with the Commission, in the terms that it establishes by regulation, throughout the entire administrative investigation procedure;

• 2)

  End its participation in the present violation at the moment it provides the evidence referred to in this Article, except in those cases in which the Commission deems it necessary that such participation continue in order to preserve the effectiveness of an inspection;

• 3)

  Not have destroyed evidence related to the exemption request nor have revealed, directly or indirectly to third parties other than the Commission or other Authorities, its intention to submit this request or its contents; and, 4) Not have adopted measures to force other companies to participate in the violation; nor have been the promoter of the conduct constituting the violation.

REDUCTION OF FINE AMOUNT. The Commission may reduce the amount of the fine corresponding to those persons subject to this Law that do not meet the requirements established in Article 51-A, when: 1) They provide evidence of this violation that adds significant value compared to that which the Commission already possesses; and, 2) They comply with the requirements established in subsections 1), 2) and 3) of Article 51-B.

RULES FOR CALCULATING THE REDUCTION. The level of reduction of the fine amount shall be calculated according to the following rule:

• 1)

  The second economic agent that complies with the provisions of Article 51-C may benefit from a reduction of between thirty (30) and fifty (50) percent of the fine amount that corresponds;

• 2)

  The third economic agent may benefit from a reduction of between twenty (20) and thirty (30) percent of the fine amount that corresponds; and, 3) Successive economic agents may benefit from a reduction of up to twenty (20) percent of the fine amount that corresponds.

ADDITIONAL CALCULATION RULES. The provision by an economic agent of evidence that permits establishing additional facts with direct impact on the fine amount must be taken into account by the Commission when determining the fine amount corresponding to said economic agent. The reduction of the fine amount corresponding to an economic agent is applicable, in the same percentage, to the fine that may be imposed on its representatives or on the persons comprising the management bodies that have participated in the agreement or decision, provided that they have cooperated with the Commission.

ASSETS OF THE COMMISSION FOR THE DEFENSE AND PROMOTION OF COMPETITION. The assets of the Commission are comprised of:

• 1)

  Resources that the State transfers to it;

• 2)

  The allocation from the General Budget of the Republic;

• 3)

  The movable and immovable property that it acquires for the performance of its functions;

• 4)

  The subsidies and contributions that the State grants it;

• 5)

  Resources derived from international cooperation;

• 6)

  Bequests and donations that it receives in accordance with laws and in accordance with transparency procedures and public ethics control;

• 7)

  Non-tax revenues, fees, fine percentages and service charges; and,

• 8)

  Other revenues that it may legally obtain.

FEE FOR VERIFICATION OF ECONOMIC CONCENTRATIONS. For purposes of the obligation to notify economic concentrations established in this Law and other regulatory provisions issued by the Commission, economic agents involved in an economic concentration operation must pay a fee equivalent to zero point fifteen percent (0.15%) of the total value of the assets involved in the economic concentration operation, for the analysis to determine whether or not it complies with what this Law establishes. The amount of said fee must not exceed the total value equivalent to two hundred fifty (250) monthly minimum wages. The payment receipt must be presented to the Commission within ten (10) business days counted from the day following notification of admission of the request for the economic concentration operation in question. Funds collected by the verification fee indicated above must be deposited with the General Treasury of the Republic. To strengthen the assets of the Commission, the State Secretariat in the Office of Finance must proceed on a quarterly basis to transfer the amounts that correspond to it according to the budgetary rule of the fiscal year, in favor of the Commission for the Defense and Promotion of Competition, in an amount equivalent to the amount of the Fee for Verification of Economic Concentrations deposited with the General Treasury of the Republic.

INCOME FROM FINES IMPOSED. Part of the assets and budget of the Commission is an amount of at least twenty percent (20%) of the total amount of fines applied by the Commission in the different procedures provided for in this Law and its Regulations. The State Secretariat in the Office of Finance must proceed on a quarterly basis to transfer in favor of the Commission for the Defense and Promotion of Competition the equivalent of at least twenty percent (20%) of the amount of fines received by the General Treasury of the Republic in the same period, once the administrative acts imposing the economic sanctions have become final and do not admit any remedy, whether in administrative proceedings or in judicial proceedings, as accredited by certification from the General Secretariat of the Commission.