Tacit collusion:
"is banned in Peru?
few years ago, they faced two football teams "X" and "Y". They only needed a draw to qualify. There was a third team, "Z" to await the outcome of this match to see if classified. If one team lost, he is classified. Started the game and attacking any other. Played in the midfield and in the final moments of the match, throwing "intentionally" the ball to the sides or far, and it takes a while to pick it up. They knew that a draw was enough, and that risk, the better throwing the ball or let time pass. Obviously, the team "Z" complained that the attitude of these teams went against the spirit of the game. It was not necessary that both teams have expressly agreed not to compete, but the attitude of both teams reflected a tacit agreement not to harm the other. If you were FIFA penalize teams "X" and "Y". [1]
I brought this example, as an introduction one of the most controversial issues in the doctrine of Peru, now on the competition: tacit collusion is banned or not? This is an interesting debate and very complex. However, the debate is also at times a bit confusing. Appears to assimilate the plane must be with the plane of being. Thus, the arguments seem designed to sustain tacit collusion should not be prohibited and, hence, jump to assert that tacit collusion is not prohibited by Peruvian law. Clearly, you can not make this inferential leap.
For example, as a doctrine that tacit collusion is conduct rational in an oligopoly, it should not be punished. This would be a valid argument as the legislature was led to tacit collusion not regarded as subject to punishment in our legal system, but is not an argument to tell us whether such conduct is currently prohibited in Peru by Decree Legislative Decree N ° 701.
The argument that interact oligopolies or fixed in the policy of the other companies to set their trade policies, since it is a rational behavior is not an argument that supports that Article 6 of Legislative Decree No. 701 does not prohibit tacit collusion. If two oligopolistic firms without to maintain an express communication, signals are sent to increase the price, or simply to avoid competition between them, such conduct may qualify as a parallel action that restricts, prevents or distorts competition.
To determine whether tacit collusion is prohibited in the Peruvian legal system, the first thing you have to analyze is the text of Article 6 of Legislative Decree No. 701, even more, in the case of provisions on sanctions, where letter of the text is essential. That article is meant by restraint of free competition agreements, decisions, recommendations, parallel actions or practices agreed between companies that produce or could produce the effect of restricting, preventing or distorting competition. The text of this article is broad enough to conclude that tacit collusion is prohibited. Indeed, the phrase "parallel actions" or "concerted practices" paid in this regard. Certainly, it is also necessary that a parallel or concerted practices restrict, prevent or distort competition to be sanctioned.
However, separate issue is whether the sanction of tacit collusion violates principles of sanctions. In that case, one could question the constitutional validity Article 6 at that end, because it violates basic principles of penal law. And, as is known, the argument on the constitutional level becomes more positive and it is only in this scenario that corresponds to carve entering arguments must be " [2] .
As mentioned, some authors argue that tacit collusion is rational behavior of an oligopoly and therefore should not be punished. This argument is vitiated by a kind of naturalistic fallacy. The fact that behavior is rational, not automatically make good, accurate or appropriate. Moreover, in principle, the behaviors that are punished are those that are rational, not those that are not. In my example of the football match, a draw would respond to a rational behavior of the teams "X" and "Y". However, their behavior could be described as good or consistent with the principles of the game?
is a principle of sanctions that only willful misconduct (intentional) can be sanctioned. Negligent conduct may be sanctioned only by exception. In this regard, it is said that an act is rational, an argument that favors its passage, asserting that the act was intentional. Therefore, this argument becomes a boomerang for those who argue that tacit collusion, by being rational, should not be punished.
Now it is true that not only sufficient that the conduct is rational to be punished. It is a first element, but not enough. A second element is whether the conduct caused injury to another person or society [3] . The third element, namely whether it could require companies oligopolistic conduct other than that have been developed. A fourth element is to examine whether the sanction is a mechanism to correct the tacit collusion. It makes no sense to punish someone if the penalty is not the ability to deter or prevent the behavior from recurring in the future. And
These last two points, there are contradictory positions. Some argue that there is no mechanism that can prevent two oligopolistic firms to coordinate their behavior, others argue that if tools exist some means, such as the penalty and the dismantling of enabling practices that if they could avoid the coordination between oligopolistic firms, while recognizing the implementation and monitoring of such measures is quite difficult [4] .
A different argument, but that could shed light on the Prohibition of tacit collusion, is to determine what is the purpose of the legislation free competition in Peru. In principle, the Constitution appears to prohibit only those anticompetivias behaviors that result from intentional and deliberate conduct on the part of companies to eliminate competition. In that sense, arguing that tacit collusion is consistent with our constitutional system have to prove that the conduct is intentional and deliberate behavior by oligopolistic firms to restrict, alter or distort the functioning of competition in the market. The great difficulty would be to demonstrate that both companies intended to align their behavior to restrict, prevent or distort competition.
It can be seen discussion, at the constitutional level, whether tacit collusion is prohibited reflected, ultimately, an evaluative discussion about our economic system, the purpose of competition law and the protection of consumer rights and the limits of State to prohibit and punish certain behaviors.
[1] told The news above should be taken by way of example, and not as fact.
[2] Another way of introducing arguments "should be" the argument would start analyzing the values are included in the economic chapter of the Constitution. Thus, in a second step, would make a reading of Legislative Decree No. 701 in light of the values \u200b\u200benshrined in our Constitution.
[3] The liberal penal law, the principle guiding the sanctioning of conduct is the principle of harm, that is, you can only punish conduct that causes or may cause, damage particular the rights of any individual.
[4] In the case of the party, which may impose penalties and remedies to prevent such conduct happen again. How do you do for two teams to compete? Is the penalty a measure to discourage companies to engage in such activities? It could be the case that the remedy or sanction to impose is worse than the disease.
I brought this example, as an introduction one of the most controversial issues in the doctrine of Peru, now on the competition: tacit collusion is banned or not? This is an interesting debate and very complex. However, the debate is also at times a bit confusing. Appears to assimilate the plane must be with the plane of being. Thus, the arguments seem designed to sustain tacit collusion should not be prohibited and, hence, jump to assert that tacit collusion is not prohibited by Peruvian law. Clearly, you can not make this inferential leap.
For example, as a doctrine that tacit collusion is conduct rational in an oligopoly, it should not be punished. This would be a valid argument as the legislature was led to tacit collusion not regarded as subject to punishment in our legal system, but is not an argument to tell us whether such conduct is currently prohibited in Peru by Decree Legislative Decree N ° 701.
The argument that interact oligopolies or fixed in the policy of the other companies to set their trade policies, since it is a rational behavior is not an argument that supports that Article 6 of Legislative Decree No. 701 does not prohibit tacit collusion. If two oligopolistic firms without to maintain an express communication, signals are sent to increase the price, or simply to avoid competition between them, such conduct may qualify as a parallel action that restricts, prevents or distorts competition.
To determine whether tacit collusion is prohibited in the Peruvian legal system, the first thing you have to analyze is the text of Article 6 of Legislative Decree No. 701, even more, in the case of provisions on sanctions, where letter of the text is essential. That article is meant by restraint of free competition agreements, decisions, recommendations, parallel actions or practices agreed between companies that produce or could produce the effect of restricting, preventing or distorting competition. The text of this article is broad enough to conclude that tacit collusion is prohibited. Indeed, the phrase "parallel actions" or "concerted practices" paid in this regard. Certainly, it is also necessary that a parallel or concerted practices restrict, prevent or distort competition to be sanctioned.
However, separate issue is whether the sanction of tacit collusion violates principles of sanctions. In that case, one could question the constitutional validity Article 6 at that end, because it violates basic principles of penal law. And, as is known, the argument on the constitutional level becomes more positive and it is only in this scenario that corresponds to carve entering arguments must be " [2] .
As mentioned, some authors argue that tacit collusion is rational behavior of an oligopoly and therefore should not be punished. This argument is vitiated by a kind of naturalistic fallacy. The fact that behavior is rational, not automatically make good, accurate or appropriate. Moreover, in principle, the behaviors that are punished are those that are rational, not those that are not. In my example of the football match, a draw would respond to a rational behavior of the teams "X" and "Y". However, their behavior could be described as good or consistent with the principles of the game?
is a principle of sanctions that only willful misconduct (intentional) can be sanctioned. Negligent conduct may be sanctioned only by exception. In this regard, it is said that an act is rational, an argument that favors its passage, asserting that the act was intentional. Therefore, this argument becomes a boomerang for those who argue that tacit collusion, by being rational, should not be punished.
Now it is true that not only sufficient that the conduct is rational to be punished. It is a first element, but not enough. A second element is whether the conduct caused injury to another person or society [3] . The third element, namely whether it could require companies oligopolistic conduct other than that have been developed. A fourth element is to examine whether the sanction is a mechanism to correct the tacit collusion. It makes no sense to punish someone if the penalty is not the ability to deter or prevent the behavior from recurring in the future. And
These last two points, there are contradictory positions. Some argue that there is no mechanism that can prevent two oligopolistic firms to coordinate their behavior, others argue that if tools exist some means, such as the penalty and the dismantling of enabling practices that if they could avoid the coordination between oligopolistic firms, while recognizing the implementation and monitoring of such measures is quite difficult [4] .
A different argument, but that could shed light on the Prohibition of tacit collusion, is to determine what is the purpose of the legislation free competition in Peru. In principle, the Constitution appears to prohibit only those anticompetivias behaviors that result from intentional and deliberate conduct on the part of companies to eliminate competition. In that sense, arguing that tacit collusion is consistent with our constitutional system have to prove that the conduct is intentional and deliberate behavior by oligopolistic firms to restrict, alter or distort the functioning of competition in the market. The great difficulty would be to demonstrate that both companies intended to align their behavior to restrict, prevent or distort competition.
It can be seen discussion, at the constitutional level, whether tacit collusion is prohibited reflected, ultimately, an evaluative discussion about our economic system, the purpose of competition law and the protection of consumer rights and the limits of State to prohibit and punish certain behaviors.
[1] told The news above should be taken by way of example, and not as fact.
[2] Another way of introducing arguments "should be" the argument would start analyzing the values are included in the economic chapter of the Constitution. Thus, in a second step, would make a reading of Legislative Decree No. 701 in light of the values \u200b\u200benshrined in our Constitution.
[3] The liberal penal law, the principle guiding the sanctioning of conduct is the principle of harm, that is, you can only punish conduct that causes or may cause, damage particular the rights of any individual.
[4] In the case of the party, which may impose penalties and remedies to prevent such conduct happen again. How do you do for two teams to compete? Is the penalty a measure to discourage companies to engage in such activities? It could be the case that the remedy or sanction to impose is worse than the disease.
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