Competition DNU: applauded, but it was otherwise

Competition DNU: applauded, but it was otherwise

It is noteworthy that finally a government has promoted an attempt to regulate all-encompassing the discipline of unfair competition.

It is a pending debt of at least 23 years, when the Paris Union Convention was incorporated into Argentine legislation in 1996, whereby member countries are obliged to ensure effective protection against unfair competition for their inhabitants.

The very good intention is overshadowed by the form. No urgency is apparent for the implementation via DNU (Decree 274/2019) of a regulation pending so long ago. The issue requires a broad debate in Congress. This debate would allow to analyze what is the best economic policy for the subject, and correct deficiencies of the sanctioned text.

In the first place, it could have been debated whether it is necessary for the public administration to intervene in resolving issues between private operators, theoretically situated at the same level of strength. Unfair competition regulates illicit acts between competitors, and does not directly, for the correct structural functioning of the market, as does the discipline of the defense of competition, nor for the interests of consumers, as does the defense of the consumer .

In a state that needs to reduce spending, create a whole structure to solve problems between individuals, which effectively resolves ordinary commercial justice, does not make much sense.

A serious problem of the decree is the limitation of unfair competition exclusively to acts that do not affect the general economic interest achieved by the Antitrust Law. The regulation is born in this way with “the legs cut”.

Historically, acts of unfair competition were eventually adopted by the discipline of the defense of competition, originally implemented for cases in which competitors ceased to compete with each other, to the extent that such acts of unfair competition affected the general economic interest. In the great majority of the laws of the world, the employer can choose between claiming justice against a competitor who carries out an act of unfair competition that affects him, or denounce to the state that this practice not only affects him, but to the whole structure of the market.

By means of Decree 274/2019, the possibility of the employer of claiming justice “vis a vis” against a competitor will be severely curtailed in cases in which the act may affect the general economic interest. Likewise, the “affectation to the general economic interest” will be cause of debate in cases of unfair competition, which until now has not happened, and it will condition relevantemente the result of the judgment, being reason of uncertainty.

Likewise, the administrative system created by the DNU may be unfair and not very federal, since small businesses in the provinces must present cases of unfair competition exclusively in the City of Buenos Aires before the Ministry of Commerce, including cases of comparative advertising, which is halfway between two titles of the Decree.

As unfair as there is a specialized chamber of the Federal Civil and Commercial Chamber in the City of Buenos Aires, creating, as a prestigious chamberlain recently indicated, a “red carpet justice” for residents in the City; and as unfair as to bring this issue to the federal justice, when historically most cases of unfair competition, except those reserved for intellectual property, have been resolved by the courts with ordinary commercial competence.

To this we must add the treatment of this discipline together with provisions related to other issues, and a large number of technical issues and legislative deficiency throughout the article, including even unconventional acts of unfair competition and that may involve normal and proper acts of the dynamics of the market. In short, the initiative is applauded and appreciated, but another form of implementation would have been expected.


Columnist: Sebastián García Menéndez – Abogado y técnico en Administración de Empresas.
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