Argentina

• Pages: 109-140

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Chapter IV

ARGENTINA

A. Introduction

Intellectual property rights in Argentina are protected under the

National Constitution, as well as under specific statutes as described

below. The National Constitution states that: “every author or inventor

is the exclusive owner of its work, invention or discovery, for the term

provided under the law.”1

Market competition in Argentina is equally protected under the same

normative level. The National Argentine Constitution establishes that

the authorities will provide for “the defense of competition against any

method of market distortion, and the control of natural and legal

monopolies.”2

In spite of the potential tensions between these two areas of law, up

to the present they have largely developed independently of one another,

partly due to their underdevelopment.3 This chapter identifies cases

where an overlap between these two legal doctrines occurred, and

anticipates the potential answers of the Argentine legal system to

common intellectual property and competition interface problems that

have arisen in other jurisdictions.

B. Sources and Basics of Argentina’s Competition Law

Argentina’s Defense of Competition Law No. 25, 156 (hereinafter

Competition Law) took effect on October 1st, 1999,4 and replaced the

country’s prior antitrust regime.5 Reenacting, with some revisions, the

prior statute’s prohibition of acts limiting, restricting, or distorting

1. Constitución Argentina [Const. Arg.] art. 17 (2).

2. Id. art. 42 (2).

3. See GUILLERMO CABANELLAS DE LAS CUEVAS, DERECHO

ANTIMONOPOLICO Y DE DEFENSA DE LA COMPETENCIA,

Volume 2 (Heliasta ed., 2005) at 252.

4. Law No. 25,156, Sept. 16, 1999, [LIX-D] A.D.L.A. 3942; see also

Decree 89/2001, Jan. 30, 2001, [LXI-A], A.D.L.A. 255; Decree 396/2001,

Apr. 1, 2001 [LXI-B], A.D.L.A. 1595.

5. Law No. 22,262, Aug. 1, 1980, [XL-C] A.D.L.A. 2521.

110 Antitrust Issues in International IP Licensing Transactions

competition and abuses of a dominant position, the Competition Law

also introduced merger regulation for the first time.

The Competition Law also provides for the creation of an

independent body holding investigative and adjudicative powers

regarding antitrust issues—the Tribunal Nacional de Defensa de la

Competencia (hereinafter TNDC)6—which, for political reasons, has yet

to be formed.7 As a result, the Comisión Nacional de Defensa de la

Competencia (hereinafter CNDC), the enforcement agency under the

prior statutory regime, continues to handle antitrust matters. The CNDC

now reports to the Secretaría de Comercio Interior (hereinafter

Secretariat), which adjudicates matters investigated by the CNDC. Both

agencies operate under the auspices of the Ministry of Economy and

Public Finance.

The Competition Law applies to individuals, corporations and other

legal entities engaged in economic activities either in Argentina or

outside the country to the extent that the activities have effects in

Argentina.8

All violations are assessed under a rule of reason, as the Competition

Law does not stipulate any categories of per se illegal conduct.9 The

Competition Law prohibits conduct related to the manufacture and sale

of goods and services that has the object or effect of limiting, restricting,

or distorting competition or entry into a market, as well as conduct that

constitutes an abuse of a dominant position, but only if such conduct may

harm the general economic interest.10 The CNDC’s interpretation of the

term “general economic interest” is closely related to the concepts of

economic efficiency and consumer welfare.11

6. Competition Law, art. 17.

7. Whereas the CNDC is a branch of the Ministry of Economy and Public

Finance, and thus an arm of the Executive Branch, the TNDC was

conceived as an independent body. The failure to form the latter

apparently stems from the Executive Branch’s reluctance to relinquish

control over antitrust policy and enforcement. See Cabanellas de las

Cuevas, supra note 3 (Volume 1), at 106.

8. Competition Law, art. 3.

9. Otamendi, Jorge. El interés general y la eficiencia económica en la ley

de defensa de la competencia, L.L [1999-F], 1087 at 1; see also

Statement of Reasons, Law No. 22.262, § III.1, ¶ 3.

10. Competition Law, art. 1.

11. See CNDC, Breve análisis económico de la ley argentina de defensa de

la competencia [Brief Economic Analysis of the Antitrust Act] (1997),

http://www.mecon.gov.ar/cndc/memorias/memoria97/docu1.htm; “Y.P.F

S.A.”, 325 Fallos 1702 (2002).

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1. Agreements that Restrict Competition

Neither horizontal nor vertical agreements are per se illegal under

Argentine law. 12 For illustrative purposes, Section Two of the

Competition Law provides a nonexhaustive list of acts that, to the extent

they cause the requisite harm to the general economic interest under

Article 1, constitute anticompetitive practices. These include, among

others: fixing, converting, or manipulating the price of goods and

services, or exchanging information with the purpose or effect of fixing

prices; agreeing to limit production of goods; horizontal market

allocation; bid rigging; preventing or limiting the access of third parties

to a market; and tying.13

Some of these examples may be multilateral in nature, such as price

fixing, bid rigging, market allocation or group boycott. However, the

listed conduct patterns still must impair, or at least potentially impair, the

general economic interest before being considered an antitrust violation.

In spite of the foregoing, hardcore cartels have been recently

implicitly considered by the CNDC as violations that have an

anticompetitive “object” and thus as not requiring proof of market

power.14 However, this view has not been shared by the courts to date.15

Although the Competition Law is administrative in nature, it is worth

noting that Section 300(1) of the Criminal Code provides for criminal

sanctions (imprisonment of between six months and two years) for fixing

the price of goods (not services) among competitors.16 However, as a

practical matter, this provision has not been applied in the past 20 years.

2. Unilateral Conduct

The Competition Law also identifies unilateral conduct patterns as

abuses of dominance.17 The Competition Law and CNDC case law

consider both exclusionary and exploitative types of abuse, including

12. See Otamendi, supra note 9.

13. Competition Law, art. 2.

14. “Ref. Eleva Denuncia”, Secretaría de Comercio Interior, Resolution No.

32 (Oct. 23, 2006).

15. “Shell Gas S.A. y Totalgaz Argentina S.A.”, CFed. Posadas (May 30,

2008); “Shell Gas S.A. y Totalgaz Argentina S.A.”, CSJN XLIV S. 808.

2010.

16. See Código Penal [Cód. Pen.] art. 300 (1).

17. Competition Law, arts. 4, 5.