In recent weeks, the Government has issued a set of standards critical to the functioning of the state and the economy. Within this package is a set of rules for ensuring competition and consumer protection, both substantive and procedural aspects. In this brief comment, I will discuss some issues concerning the design the sanctioning procedure governing the conduct law enforcement anticompetivas (Legislative Decree No. 1034), which, in general, is very similar to other disciplinary proceedings handled by the Indecopi.
Article 18 of Legislative Decree No. 1034, (hereinafter Leg. 1034) provides that the disciplinary proceeding is always initiated ex officio or at the initiative of the Technical Secretariat or part. However, this article is not clear about the role that is assigned to run: part? "Intervener? Do you collaborate? Procedurally, they are distinct legal concepts. On the one hand, the article notes that the administered is a collaborator, but on the other, allows you to challenge the decision declaring inadmissible or unfounded complaint, which does not seem appropriate to a single partner. This contradiction within the law itself must be clarified by the jurisprudence of the Board and, ultimately, by the judiciary.
Note that there are arguments worthy of consideration for the ownership of research and order of initiation of an infringement procedure only, and only, it corresponds to a public body [1] . For example, the administrative body which bears the title of the research is guided by the principle of legality, that is, he can only charge if they exist sufficient evidence to prove the defendant's responsibility. This, in turn, implies that the administrative body find evidence both for and against the hypothesis that operate on the responsibility of investigation, which also must be accessible to citizens.
Indeed, the administrative body defends the public interest, which involves a thorough investigation of the facts are analyzed. The national coach has an obligation to really find out what happened, beyond the defense and arguments that may pose the investigation.
In the case of managed complainant, this does not have the incentives and the duty to defend the public interest. He only promotes the procedure it seeks to defend their rights and interests. These incentives lead naturally to the present administered only evidence that favors his position. It would be irrational to do otherwise.
However, there are arguments that can be given the opportunity to be parties to proceedings, as the lack of government resources to conduct investigations, the more knowledge individuals have about the market, etc.
ideal option to consider would be administered as part, but provided that certain safeguards be established that prevent managed to handle the procedure, such as disclosure of any information they have in their possession relevant to the proceedings, under sanction. If it is demonstrated that the parties and their attorneys intentionally been hidden or distorted information, it could punish them severely. You can also set burdens of proof that create incentives for parties to disclose information.
Another point which is not very clear in the D. Leg. 1034 is referred to the lack of distinction between the research stage to the stage of discussion of the arguments of the parties. For example, states that within the procedure will be the preliminary stage, and set a period of seven months to act evidence. However, there are other articles which state that for the initiation of disciplinary proceedings is necessary prima facie evidence.
In this regard, I think the confusion is due, in part because it does not distinguish between the research phase of the startup phase of the process itself (call it contradictory). Thus, in the research phase, as its name implies, it is investigated, for example, why they raised prices of goods. To this end, the Secretariat will handle several hypotheses, some referring to a possible conclusion, other causes relating to market. At this stage, the Secretariat will require information, documents, summon witnesses, make inquiries and, in general, all acts deemed necessary to confirm or rule out the hypothesis that it is investigating.
Therefore, and following the Constitutional Court's jurisprudence, I believe that the Secretariat should not open an infringement procedure against a company if you do not have a plausible argument for an infringement by the defendant. The Secretariat should carry a charge to run the commission of an offense when she, in his view, is satisfied that this has actually happened. You can not impute to a including the commission of an offense, if you do not have enough evidence to enable it to make that complaint.
From my point of view, to open an infringement procedure, the Technical Secretariat should follow the criteria set forth in Resolution No. 028-2008-INDECOPI/CLC [2] of May 13, 2008, to open a disciplinary proceedings:
For this reason, it is necessary that any report provided that at least the following requirements: • Description and
clear and precise identification of the allegedly unlawful conduct committed by the defendant. In that sense, not enough to assert, in general, a person had abused its dominant position or made an anticompetitive practice, it is necessary to explain clearly and precisely what the specific conduct that would constitute abuse of dominance or restrictive practice;
• Description of the facts that would infer the commission of the conduct in question. So, if it is a complaint that is built on the basis of indirect evidence, the complainant shall indicate what facts or indirect evidence that would infer that the defendant committed the conduct charged;
· If the case, the legal and, in general, legal reasoning that supports that the events described can be qualified as abuse of dominance or anticompetitive practices and, in particular, allow us to infer the existence of the charges against him the accused, and,
• The offer of the evidence that credited the allegations.
There are many more interesting things to look at this law and other governing the work of Indecopi, as the "change? consumer standard protects the consumer protection law, which will be commented later.
[1] The debate about the pros and cons of the procedure American adversarial system might give some light on how far you can rely on the private parts of the process progress. In this regard, you can review the following literature: Pizzi, William T. Trials Without Truth. Why Our system of criminal trials has Become an expensive failure and What We Need to do to rebuild it. New York University Press, 1999. FRANKEL, Marvin. Partisan Justice. McGraw Hill, 1978. Langbein, John. The origins of adversary criminal Univesity trial.Oxford Press, 2002. Landsman, Stephan. Readings on adversarial Justice: The American Approach to adjudication. West Group, 1988.
also the exchange between teachers Langbein and Allen. Langbein, John. The Germ Advantage in Civil Procedure, 52 Univ of Chicago Law Review 823 (1985). ALLEN, Ronald. The Germ Advantage in Civil Procedure: A Plea for Greater Detail and Fewer Generalities in Comparative Law Scholarship, 82 Northwestern Law Review 705-762 (1988) (with Rosen, Koch & Reichenberg). Langbein, John. Trashing "The German Advantage," 82 Northwestern Law Review 763 (1988). And the response from ALLEN, Ronald. Idealization and Caricature in Comparative Law Scholarship, 82 Northwestern Law Review 785-807 (1988).
[2] The following link is the access to the decision under review:
http://www.indecopi.gob.pe/ArchivosPortal/publicaciones/5/2008/1-208/7/ 9/Res028-2008.pdf
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