Antitrust Litigation 2023 Comparisons

Antitrust litigation in Argentina is still developing and there are not a lot of ongoing cases. Antitrust issues that reach the court mostly consist of sanctions that are being challenged. The claims for damages are usually brought by consumer associations or public bodies or as a litisconsorcio activo (multiple parties acting as claimant); individual claims are rare. 

The current Antitrust Law that came into force on 24 May 2018 (Law No 27,442) provides for the possibility of requesting a civil fine (punitive damages) that will be established for the claimant’s benefit, hence it may be expected that this civil fine will increase the number of class actions claims, especially those claiming for consumers’ rights. 

Individuals or legal entities injured as a result of conduct sanctioned by the Antitrust Law can file a claim for damages, in accordance with Argentine legislation, before the judge having jurisdiction (Section 62, Antitrust Law). In addition, chapter IX of the Antitrust Law regulates private antitrust litigation. The Antitrust Law and Argentina’s legal system do not impose a prior finding of an antitrust infringement as a condition for initiating private antitrust litigation. However, damages claims are usually initiated as follow-on actions, based on the prior finding of infringement by the National Competition Authority (NCA). 

Pursuant to the Antitrust Law, the actions must be filed with the Civil and Commercial Federal Courts at national level or the Federal Court in provincial jurisdictions. 

The decision of the NCA in relation to a violation of the Antitrust Law, once it becomes final and binding, has the force of res judicata, so the claimant of a follow-on action only has to demonstrate that the already proved infringement caused them harm. A decision of NCAs in other states is not binding on the court. NCAs can intervene in damage actions, though this is not common. 

In principle, the burden of proof is on the claimant. However, if the defendant wants to argue that a claimant is not entitled to claim under the proceeding, as they have passed on the overcharge to indirect purchasers and therefore suffered no loss, they have to provide evidence. The pass-on defence must be invoked when responding to the claim.

Claims can be brought by direct and indirect purchasers. The basis of the claims consists of proving the existence of an antitrust infringement, the actual damage suffered and the relation between the alleged antitrust infringement and the damage. 

The typical duration of proceedings from the issuance of a claim through to trial is one year, but it takes three to four years to obtain a final and binding court decision. The resolution of the judicial claim may be suspended if the NCA initiates an investigation in relation to the damages claim. Said suspension will end when a final and binding decision is issued or when the proceedings are closed by any other way. The suspension is based on the fact that the NCA’s decision, when final and binding, has res judicata force in relation to the damages claim. 

Collective actions are available. According to the Consumer Law, a court settlement must take the consumer’s opt-out right into account. However, the Antitrust Law does not provide for the possibility to opt-in or opt-out of collective actions.

In addition, multiple parties can act as claimants (litisconsorcio activo). However, in this kind of action, the ruling does not have the same effect as a ruling issued in a collective action. In a multiple claimant action, the ruling only binds the parties that have directly acted in the proceedings as claimant or defendant. 

Consumer associations (duly registered) or public bodies have standing to file collective actions if certain requirements are met:

• the claim has to be homogeneous within the members of the class; and
• the claim for each individual member has to be insignificant – ie, individuals shall not have an interest in pursuing the claim themselves due to its insignificance. (See rulings in Halabi, Ernesto c/ PEN ley 25.873 y decreto 1563/04 s/ amparo and Asociación Protección Consumidores del Mercado Común del Sur c/ Loma Negra Cía. Industrial Argentina S.A. y otros, – CSJ 566/2012 (48-A); CSJ 513/2012 (48-A)/RH1; CSJ 514/2012 (48-A)/RH1 – among others).

In the settlement of collective actions there is judicial oversight: judicial settlements have to be submitted for the court’s approval and the court decides on the case after the Public Prosecutor has issued its opinion. 

The Antitrust Law provides that the summary proceeding governed by the Civil and Commercial National Procedural Code is applicable to claims for damages based on a previous final and binding resolution of the NCA determining whether an anti-competitive conduct occurred. 

The Federal Courts are competent authorities (ie, Civil and Commercial Court at a national level and local federal courts at a local level). As regards the substantive law, the Antitrust Law applies regardless of whether the conduct has a national or local impact; in relation to procedural law, the Civil and Commercial National Procedural Code applies.

The statute of limitations for anti-competitive conduct is five years, commencing from the date the conduct is committed or ceased. The statute of limitations term to claim for damages is:

• three years commencing from the date that:
1. the infraction was committed or ceased; or
2. the victim becomes aware, or it may be reasonable that they are aware, of the anti-competitive conduct; or
• two years commencing from the date the sanctioning decision of the NCA became final and binding.

In Argentina there is no discovery process; instead, there is a procedural stage for the submission of evidence presented by each party (eg, witness hearings, expert evidence) once the judicial claim has started.

In Argentina, there is no discovery process. However, in accordance with Section 1735 of the Civil and Commercial Code, a judge may ask a party to submit certain evidence if it is in a better position to prove guilt or diligent conduct. If the evidence is confidential, that party can ask for it to not be publicly disclosed. 

If a settlement agreement with the NCA is reached, it could be protected from full disclosure if requested by the parties. However, a non-confidential version of the agreement may be published.

As regards the leniency programme, the identity of the party who requests it and the information and documents submitted to the NCA by such party will remain confidential.

Witnesses of fact are relied on. In principle, their evidence is given orally and may be subject to cross examination, but they may extend their statements in writing. Witnesses can be compelled to provide evidence.

It is usual to rely on expert witnesses. Depending on their expertise and what they are providing evidence for, their evidence is given orally (and may be subject to cross examination) or in writing. When arguing their case, the parties do not require, however, the permission of the court to adduce expert evidence. Courts do not usually require experts to produce joint statements indicating the areas in which they agree/disagree in advance of the trial, nor do they adopt alternative methods of hearing expert evidence such as “hot tubs”.

While in “stand alone” cases the party seeking damages must first establish the breach of the Antitrust Law before showing that the infringement caused them harm, “follow on” cases are easier since the infringement of the Antitrust Law has already been established by the NCA and said ruling is res judicata so the damaged party only has to prove that said antitrust infringement caused them harm. That is why in a “follow on” case the rules of the abbreviated procedure apply.

Besides, the party seeking damages can also request punitive damages (civil fine) that will be graduated according to the seriousness of the case.

Neither the Antitrust Law nor any of the NCA’s guidelines refer to the "pass-on defence", but nothing prevents the defendant from invoking it if applicable. In fact, there is a case that has been decided partially admitting this defence.

As a general principle, damages have to be totally repaired hence interest can be claimed either as pre-judgment or post-judgment. The interest rate depends on the judge and the competent court. 

When more than one person is responsible for an infringement, all of them will be jointly and severally liable to the injured party. 

Those physical persons or legal entities that have made use of the leniency programme (provided that the antitrust authority has accepted it) may exempt or reduce their liability. However, they will be jointly and severally liable when it is impossible to obtain full compensation from the other companies that have been involved in the infringement.

All those responsible for an infringement are jointly and severally liable to the injured party. However, a defendant who has paid damages disproportionate to the harm they have caused may bring contribution proceedings to obtain a contribution from the other defendants or a third party that also caused the damage. Said third party has to be called to the proceedings, otherwise the ruling (that set the obligation to repair the damage) may not be applicable against them and no action for recovery may be allowed. 

The Antitrust Law establishes that, at any stage of the antitrust proceedings, in order to prevent harm or reduce its magnitude, continuation or aggravation, the NCA may impose compliance with certain conditions, as well as order the cessation or abstention of presumably anti-competitive acts.

With respect to injunctive relief in stricto sensu, the Antitrust Law establishes that the NCA must submit a request to the competent judge, who must rule within one day. Injunctions shall be granted and enforced without notice to the other party.

Both types of measures could be imposed or a requested submitted to the judge, as the case may be, ex officio or at the request of a party. However, according to the procedural laws, the injunctive relief in stricto sensu may only be granted under the responsibility of the party requesting it, who must provide security for all costs and damages that it may cause (contracautela), but no counter-guarantee is required if the party requesting the injunction is the State. In addition, the (i) imminent damage to and (ii) verisimilitude of the invoked right must be proven in order to obtain an injunction. 

The Antitrust Law establishes that until the antitrust proceedings are resolved, the alleged infringer may commit to the immediate or gradual cessation of the investigated facts or to the modification of aspects related thereto.

If such commitment is approved by the NCA, the proceedings will be suspended. After three years of compliance with the commitment, the proceedings will be archived.

As yet, there have not been any antitrust litigation funding cases in Argentina, but nothing prevents them from being heard.

Costs are awarded once cases escalate to the judicial stage, following the “loser pays” principle. In the event that the petitioner is a consumer or consumer association seeking payment of compensation for damages, it is granted per se with the benefit of litigation without expenses. Other claimants may request the benefit of litigation without expenses but they must prove that they are not able to afford litigation. 

The Antitrust Law establishes that only the following the NCA’s resolutions can be appealed:

• the resolutions that impose sanctions;
• the resolutions that impose the cessation or abstention of a certain conduct;
• the resolutions that reject or impose a condition on a certain economic concentration;
• the resolutions that reject a complaint;
• the resolutions that reject a request to join the leniency programme; and
• the resolutions that establish precautionary measures.

However, considering the supplementary application of the criminal procedural code, other resolutions that do not fall within those above-mentioned may be appealed provided that they cause irreparable damage.

The Antitrust Law provides that appeals shall be brought before the Antitrust Specialised Panel of the Federal Civil and Commercial Court of Appeals (which is to be created) or the corresponding Federal Chamber in the provinces. 

Since the aforementioned Antitrust Specialised Panel has not yet been constituted, the appeals are processed by a panel of the Federal Civil and Commercial Court of Appeals.