Decree Law 274/19 – New regulation on Unfair Competition
This morning at the headquarters of the CCSA a working breakfast was held on the “New Regulation of Unfair Competition” in Argentina, where the lawyers Sebastián García Menéndez, Enrique Schinelli Casares and Ignacio Mora spoke.
The first speaker was Dr. Schinelli Casares, who introduced the topic highlighting the importance of the existence of a standard that provides tools, both to lawyers and companies, to present the cessation and ask for the corresponding damages, when it is noticed that there are companies that compete in the market using improper means. “The novel and interesting thing is that, finally, the Argentine government sanctioned an outstanding debt of more than 20 years with our legislation: create an omnicomprensive norm of the Unfair Competition”.
Schinelli Casares was optimistic, although he acknowledged that the sanction of the regulations was a product of some hurry and has critical aspects to consider. Nevertheless, he declared: “It is very important that both national and foreign companies and investors familiarize themselves with this norm in order to have a concrete idea about what legal mechanisms they can use when their competitive position in the market is illicitly affected” .
Then it was the turn of Dr. García Menéndez, who focused on the questionable vertebral points of the DNU 274/19 on Unfair Competition.
As a starting point of his dissertation, he pointed out the differences between Unfair Competition, Defense of Competition and Consumer Defense, giving an account of the actors and legal rights protected in each case.
Was it so urgent to create a regulation through a DNU for legislation that had been pending for 23 years ?, he asked. Was it necessary to create a state administrative structure to intervene in private matters? “These issues should be referred to the Commercial Justice and not the Federal, which is not very used to dealing with these issues, especially in the interior of the country,” he said.
García Menéndez also considered the text of the DNU “very dangerous” when it refers to the improper obtaining of commercial conditions without reasons based on uses and customs. “There is a risk that any commercial transaction may be challenged.”
Among the most questionable points, he indicated that the DNU causes a distortion and injustice by having a specialized camera in the City of Buenos Aires for issues inherent to the community, a privilege that can not be enjoyed by market operators from the rest of the country.
For García Menéndez, this decree restricts the cases of Unfair Competition for them to be treated by the Justice, even if they could affect the general economic interest as a prior matter. “There is a risk that, after years of litigation, a judge may come to determine that because it affects the general economic interest, it should have been raised in the Ordinary Court instead of the Defense of the Competition.”
Finally, it was clearly established that this issue should have been debated in the National Congress and not addressed by decree of necessity and urgency.
For his part, Dr. Ignacio Mora established differences and similarities between Commercial Loyalty and the Law of Defense of Competition, based on the special assumptions set out in Article 10. He analyzed different aspects of Decree 274/19, addressing practical issues to Take into account at the time of use.