(Revista de Derecho Administrativo, 2022-12-15) Athayde, Amanda; Accioly, Isabella
This paper aims to carry out a descriptive analysis of the Antitrust Leniency Program in Brazil, considered the precursor of other Leniency Programs in Brazilian legislation, such as the Anti-Corruption Leniency Program and the Leniency Program in the financial market. First, it is presented a brief historical review of the Program, followed by an explanation of the requirements for signing a Leniency Agreement in Brazil. Second, the paper details all phases of the negotiation process of an Antitrust Leniency Agreement. Finally, it will highlight some of the spillovers of its Program in other fields of Brazilian jurisdiction, with a brief comparison between the different Leniency Programs existent in Brazil in terms of Type of infraction; Competent institution; Legal bases; Infra-legal bases; Possible beneficiaries; Administrative benefits; Criminal benefits and Civil benefits.
(Revista de Derecho Administrativo, 2022-12-15) Krauskopf, Patrick; Dugan, Armin F.; Rufer, Laura
The following article primarily addresses the questions of whether - and if so, why - Compliance Management Systems should be taken into account by courts and authorities to reduce fines in the event of antitrust violations in companies. In addition to an overview of the prerequisites for an efficient Compliance Management System, the practices in different countries are also examined in connection with this topic. Finally, future related challenges are discussed.
(Revista de Derecho Administrativo, 2022-12-15) Urresola Clavero, Alba
In any country in the world, public procurement is the area in which governments not only carry out a significant percentage of public spending, but also serves to promote and develop public policies in such a way that it becomes a launching pad for a country’s social and economic objectives.Throughout the four generations of procurement directives, the European Union has focused on this goal: to turn public procurement into one of the integrating mechanisms of the internal market and, to this end, the procedures and rules governing this procurement system must respect the freedoms of the Treaty on the Functioning of the European Union (TFEU): the free movement of goods, freedom of establishment and freedom to provide services, but also the principles derived from these, i.e. equal treatment, non-discrimination, mutual recognition, proportionality and transparency.The European Union’s public procurement policy is a fundamental pillar for the consolidation of the internal market and also a tool for the rationalization of spending and public funds in order to achieve a sustainable system.The latest procurement directives, the so-called fourth generation directives, and more specifically Directive 2014/24/EU, of the European Parliament and of the Council, of 26 February 2014, was implemented in the Spanish legal system through the current Law 9/2017, of 8 November, on Public Sector Contracts (LCSP), a law that faithfully internalizes the relevance of procurement in the development of public policies and the achievement of its objectives. It is a law that consolidates the strategic vision of public procurement, accentuating the spirit of regulatory compliance that must preside over public action. Thus, the current LCSP focuses not only on what is purchased but also on how it is purchased.Section III of the Preamble of the LCSP refers to a legal system of public procurement. It is therefore a complex regulation that seeks open procurement at the European level, which is accessible to small and medium-sized companies. To this end, priority is given to safeguarding competition, a principle that acquires greater prominence than in previous regulations, being one of the main priorities not only in the substantive regulation but also in the established institutional scheme.In addition, the current Spanish and European regulations go a step further by placing at the center of the rules governing public procurement, not only the classic principles mentioned above (equality, non-discrimination, proportionality, etc.), but also a new principle, that of integrity, which until now was considered a moral value, but which becomes in the current LCSP a new transversal and integrating principle of the spirit that should govern public procurement. Thus, the LCSP is equipped, among others, with different mechanisms aimed at guaranteeing the integrity of the contracting authorities, based on free competition and, if necessary, on the intervention of the competition authorities. These mechanisms are aimed at ensuring compliance by public actors and are complemented by other tools aimed at verifying the legality of the actions of bidders; in short, these mechanisms and tools are aimed at promoting compliance with the regulations with the ultimate goal of guaranteeing integrity in the field of public procurement.Thus, the defense of competition is presented as a crucial instrument to ensure integrity, and as an indispensable value for an egalitarian procurement, open to the European market, accessible to small and medium enterprises and, ultimately, a more integral procurement and focused on compliance. For all these reasons, competition compliance is a tool that should be promoted by contracting authorities in their contractual practice, as well as by companies that participate in public procurement processes and that, given that they aspire to a business management with integrity, should advocate the development of their compliance programs also in the area of competition.
(Revista de Derecho Administrativo, 2022-12-15) Berenguer Fuster, Luis
In the context of the European Union, the competition policy ensures that the single market is maintained in order to guarantee the principles that characterise it. In terms of state aid, this policy means preventing Member States from granting aid to companies that would put them at an advantage over their competitors. Thus, Article 107 TFEU contains a general prohibition of state aid from which it is also possible to establish exceptions. Given the situation generated by COVID-19, the European Commission has been forced to make the European regime established for state aid more flexible on the basis of the possible exceptions with the aim of facilitating economic recovery in the Member States and, therefore, in the European Union. To this end, the European Commission has developed a “Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak”, which has been subject to successive modifications and extensions.
(Revista de Derecho Administrativo, 2022-12-15) Soldevila Fragoso, Santiago
The jurisdictional control of Administration’s resolutions constitutes one of the central objects of Administrative Law. A modern State in which democratic principles must be reconciled with the efficiency of the Administration requires the adoption of clear and precise rules in order to delimit the extent of the jurisdictional control of the Administration. This need is more evident in the administrative-economic sphere, where the Administration enjoys a wide margin of discretionary action. In this context, the control of the rationality of administrative action is offered as an effective control technique, fully respectful for both Administration’s competences and fundamental rights of the administered.
(Revista de Derecho Administrativo, 2022-12-15) Miranda Londoño, Alfonso
This paper briefly explains the Andean Community of Nations antitrust law, its development, background, exercise, procedure and relevance facing the current regulations. The free economic competition phenomenon has been a result of the free trade, the agreements between the countries and the globalization. This has led to the implementation of a European-style supranational competition regime in the Andean Community of Nations, with an authority that investigates and sanctions, a tribunal in charge of the judicial control and a legislative body. Although this structure seeks to promote the commercial cooperation, there are some difficulties in the way the competitive activity behaves in the sector. Some of the difficulties are the free movement of goods, services, and capital in the territory of the Andean community and the creation of macroeconomic and investment policies that may affect the application of the antitrust regime. This leads the economic agents to develop cross-border anticompetitive behaviors. Therefore, the antitrust law of the Andean Community of Nations should be upgraded in: The jurisdictional activation of the authorities, the requirements to open an investigation, the definition of anticompetitive conducts and their effects, the introduction of a Leniency Program that can harmonize with national legislations and the creation of a merger control regime. The last suggestions are presented in the final part of this paper.
(Revista de Derecho Administrativo, 2022-12-15) López-Galdós, Marianela; Kovacic, William E.
The article analyzes in an original way the patterns of evolution of competition systems at a global level. It establishes patterns of evolution and aims to identify those factors that influence the success or failure of the progression of competition systems.
(Revista de Derecho Administrativo, 2022-12-15) Rodríguez Miguez, José Antonio
In this paper we address the regulation of public aid, its characteristics and advantages for economic recovery based on a necessary conceptual delimitation, its economic foundation and its different regulatory areas, focusing on its importance in the current context of crisis created by the pandemic of Covid-19.With this objective in mind, we will successively expose its regulation in three different areas: multilateral, regional and national.In its multilateral dimension, we will focus on the rules contained in the framework of the World Trade Organization (WTO), where we will make a critical review of its current situation and its possible reform, highlighting the unilateral response of the European Union, adopting its own rules to control subsidies from third party countries in the European market.Next, we will analyze the rules on public aid “State aid” contained in the “Treaty on the Functioning of the European Union (TFEU)”, highlighting the special temporary and exceptional measures adopted by the European institutions due to the current pandemic, both with regard to aid granted by the Member States, as well as the European aid intended to support those Member States for economic recovery. In a later section we will offer the Spanish domestic regulation on public aid, as well as the regulation currently being drafted by the British Parliament to regulate subsidies in United Kingdom after its exit from the European Union.We will conclude this paper with a final reflection on its advantages and difficulties in facing the challenge of economic recovery, based on the need for their eventual granting to be governed by criteria of economic efficiency in the administration of public resources that are transferred to the market, through public aid.
(Revista de Derecho Administrativo, 2022-12-15) Tapia Canales, Javier; Abarca Meza, Manuel
This paper summarizes the most recent cases concerning unilateral conduct that have been brought in both the United States and Europe against the so-called “Tech Giants” (Amazon, Google Facebook and Apple). It also shows the regulatory solutions that are being put forward in different jurisdictions to deal with the conducts that have given rise to such cases. These conducts produce a tension that is at the core of today’s competition law: whether they are new categories that are not captured by the traditional standard of consumer welfare, or whether they are simply due to characteristics of technological markets that do not produce (new) competition problems.
(Revista de Derecho Administrativo, 2022-12-15) Bagnoli, Vicente
The financial market, in general, has specific characteristics that attract the attention of competition authorities around the world. It is no different in Brazil, where the trend of bank concentration in recent decades has put CADE, the competition authority, on constant alert. In this sense, since the entry into force of the Competition Law in 2012, CADE has analyzed significant concentrations in financial markets. In addition to CADE, the Central Bank of Brazil also analyzes concentrations in the financial system. The conflict of jurisdiction between the Central Bank of Brazil and CADE in competition matters generated legal uncertainty, but the 2018 Memorandum of Understanding between the authorities brought more certainties to the market. However, a Memorandum is not legally binding for the authorities and may be revised at any time.
