Cartels are regulated by Chapter I of Law No. 27,442 (the “‘Antitrust Law”’), notably, by sections 1 and 2.

Section 1 of the Antitrust Law sets forth the guiding principle to analyse any anticompetitive conduct, which provides that: “Agreements between competitors, economic concentrations, acts or conducts, in any form manifested, related to the production and exchange of goods or services, which have the object or effect of limiting, restricting, falsifying, or distorting competition or access to any market or that constitute an abuse of a dominant position in a market, in a manner that may be harmful to the general economic interest, are prohibited.”

In turn, Section 2 provides a restrictive list of types of stet agreements between competitors, that are considered practices absolutely restrictive of competition and are presumed to affect the general economic interest, namely:

1. To directly or indirectly determine, arrange or manipulate the sales price or the purchase price of goods or services offered or demanded in the market.
2. To establish obligations to produce, process, distribute, purchase or commercialise only a restricted or limited quantity of goods, or to render a restricted or limited number, volume or frequency of services.
3. To horizontally divide, distribute, allocate or impose territories, markets, customers, or supply sources.
4. To arrange or coordinate positions in tenders or bids.

Section 29 of the Antitrust Law provides that the Defense of Competition Tribunal (Tribunal de Defensa de la Competencia), may issue permits to enter into contracts, agreements, or arrangements that relate to conducts included in the Antitrust Law, that according to the reasonable discretion of the Tribunal are not harmful to the general economic interest. In turn, the regulation (i.e., section 29 of Decree 480/2018 – the “Regulatory Decree”) established that the Defense of Competition Tribunal shall verify the fulfilment of the following conditions to grant a permit to an agreement that relates to a section 2 agreement:

1. contribute to improve the production or allocation of goods and/or services;
2. promote technical or economic progress;
3. generate specific benefits for consumers;
4. not impose on the companies in question any restriction that is not indispensable to the fulfillment of the purposes set forth in the preceding paragraphs (a), (b) and (c); and
5. not afford such companies the possibility to eliminate competition in a significant portion of the affected market.

To date the Antitrust Authority has not issued any permit (either of individual or general scope) under section 29 of the Antitrust Law.

Agreements or concerted conduct between competitors falling under section 2 of the Antitrust Law shall be presumed to affect the general economic interest and the Antitrust Authority shall thus be legally relieved from proving that these type of agreements restrict competition.

The legal presumption relates to the anticompetitive effects of certain types of agreements, however, it does not extend to the existence of the agreement itself, which must always be proven by the Antitrust Authority. In other words, the anticompetitive effects of the cartel agreements of Section 2 are presumed by law.

The investigated parties may nonetheless attempt to rebut the presumption of anticompetitive effects by arguing that their agreement does not have an overall negative effect on competition since it meets the stringent conditions set forth in section 29 of the Regulatory Decree.

An anticompetitive conduct that took place outside the territory of Argentina is covered by the Antitrust Law as long as it had effects in the domestic market. Section 4 of the Antitrust Law adopts the so-called Effects Doctrine and introduces the principle of extraterritorial application of the Antitrust Law. However, there has not been any known case that derived in the sanction of cartels executed abroad.

Antitrust Law’s enforcement is at present vested in the Secretariat of Trade of the Ministry of Economy (the “‘Trade Secretariat’”), which is appointed and removed by the President of Argentina. The Trade Secretariat, which has decision-making powers, is assisted by the National Antitrust Commission (Comisión Nacional de Defensa de la Competencia) (the ‘“CNDC’”), which is a technical agency with investigatory and advisory powers. The Trade Secretariat adopts the final decision generally following the recommendations issued by the CNDC (together with the Trade Secretariat, shall be hereafter referred to as the “‘Antitrust Authority’”) and very rarely adopts a different position.

The CNDC is composed of five members. The President of the CNDC is appointed by the President of Argentina who can remove him or her without cause. The remaining four commissioners are also appointed by the President of Argentina but their term in office is four years, which can be renewed indefinitely.

However, the Antitrust Law envisions the removal of all decision-making powers from the Trade Secretariat and provides for the creation of a new, more independent antitrust authority, the National Competition Authority (Autoridad Nacional de la Competencia), which will be composed of three bodies:

1. The Defense of Competition Tribunal; composed of five members and which adjudicates on all matters relating to the Antitrust Law.
2. The Anticompetitive Conduct Secretariat; which investigates and prosecutes all matters related to anticompetitive conducts before the Defense of Competition Tribunal.
3. The Economic Concentrations Secretariat; which is responsible for the preliminary assessment of economic concentrations within the framework of the merger control regime and for issuing recommendation reports for the Defense of Competition Tribunal to rule on these cases.

Although all three bodies will make up the National Competition Authority, each will possess technical autonomy.

Pursuant to a transitory clause embedded in section 80 of the Antitrust Law, pending establishment of a National Competition Authority, the Trade Secretariat and CNDC will continue in their antitrust enforcement roles.

As of today, there are no official plans to establish the National Competition Authority despite that more than five years have elapsed since the Antitrust Law has been passed.

A cartel investigation may be initiated by a claim filed by any individual or company, ex officio by the Antitrust Authority or through a leniency application. Once a claim is filed, it is at the Antitrust Authority’s sole discretion whether to conduct an investigation or not since there are no legal instruments to force the Antitrust Authority to do so.

Once an investigation is initiated, the Antitrust Law grants the investigated parties a fifteen-business day period to submit their explanations regarding the alleged anticompetitive conduct. If the explanations filed by the investigated parties rule out the existence of an anticompetitive conduct, then the Antitrust Authority issues a resolution closing the investigation. On the other hand, if the Antitrust Authority, after reviewing the explanations and evidence filed by the investigated parties, concludes that there are grounds to file formal charges, it issues a resolution opening a formal investigation and grants the accused parties a twenty-business day period to file their defences and offer evidence.

The evidence-production period shall last a maximum period of ninety business days (which may be extended to a further ninety business days). After the evidence-production period is finalized, and the parties file their closing arguments on the evidence, the Antitrust Authority has sixty business days to issue its final decision. In practice, cartel investigations that finished with an infringement decision and the imposition of a fine by the Antitrust Authority took, approximately, between four and eight years.

Once the final decision is issued by the Trade Secretariat, it can be appealed within fifteen business days with the Federal Civil and Commercial Court of Appeals (or the competent Federal Court of Appeals in the provinces of Argentina).

Section 30 of the Antitrust Law provides that the Antitrust Authority may:

1. Hold hearings with the presumably responsible individuals and companies, claimant, damaged parties, witnesses or experts, take their declarations and order confrontations, for which purpose the help of public force could be requested.
2. Review books, documents and other elements of the investigation, control stocks, confirm origins and cost of raw material or other goods.
3. Access places subject to inspection, with the consent of the inhabitants or by means of a court order requested from the competent judge, who shall grant or deny the search within 24 hours.

Pursuant to the general principles of Argentinian Law both In-house and external legal advice is protected by the rules of privilege.

Pursuant to Sections 60 and 61 of the Antitrust Law,

Leniency will be available only in relation to agreements between competitors that are deemed as practices “absolutely restrictive of competition” pursuant to section 2 of the Antitrust Law. Therefore, it does not cover vertical agreements and/or unilateral behaviour.

he first applicant to provide evidence that allows the Antitrust Authority to determine the existence of a cartel will obtain full civil and criminal immunity, provided that it meets the following requirements:

1. immediately ceases participation in the cartel, unless otherwise ordered by the Antitrust Authority to avoid tip-offs;
2. cooperates fully, continuously, and diligently with the Antitrust Authority throughout the whole proceedings;
3. not to destroys or conceals evidence related to the cartel; and
4. has not made public the decision to apply for leniency (except to other antitrust authorities).

Provided that additional evidence of the cartel is furnished, subsequent applicants will obtain criminal immunity as well as reductions in the fines that would have otherwise been applicable, ranging between 50% and 20%, depending on the chronological order in which applications were lodged.

The requirements that the applicants must meet are the same as those established for the first applicant, provided that the subsequent applicant provides additional evidence of the cartel.

Section 60 of the Regulatory Decree created a National Registry of Markers in order to record all the requests for markers made, indicating the order of priority of each request according to the date and order of filing.

According to the Antitrust Law, leniency applicants must cooperate fully, continuously, and diligently with the Antitrust Authority from the time of submission of the application until the end of the administrative proceedings.

Regarding confidentiality, leniency applicants must not have made public the decision to apply for leniency, and the identity of all leniency applicants will be kept confidential by the Antitrust Authority as well.

Pursuant to section 61 of the Antitrust Law, the grant of leniency extends to immunity from criminal prosecution for directors, managers, administrators, trustees, or members of the Statutory Auditors Office, agents or legal representatives of the infringing legal entity who by means of their action or omission of their duties of control or supervision, had contributed, encouraged, or allowed an infringement to the Antitrust Law and meet the common requirements to apply for leniency jointly with the company.

Yes. Section 60, paragraph c) of the Antitrust Law, provides a “leniency plus” benefit for those applicants that fail to qualify for immunity for the first cartel being reported, but which may nonetheless report a second and discrete cartel for which they will be granted immunity plus an additional one-third fine reduction in relation to the first cartel.

Pursuant to section 45 of the Antitrust Law, the investigated parties have the possibility to propose a voluntary suspension of a conduct, subject to approval of the Antitrust Authority. This can be done only prior to the issuance of the final resolution. In case of approval by the Antitrust Authority, the proceedings will be suspended for three years. Once this period has elapsed without recidivism the proceedings will be closed. However, this approval seems highly unlikely.

Despite the fact that compromises would not appear to be available in cartel cases, the Antitrust Authority has recently accepted a compromise in the Prisma case, even when the teory of harm put forward by the CNDC in this investigation included collusive conduct.

The main advantage for entering into a compromise is that the investigation will be suspended and eventually closed if the parties comply with the compromise, avoiding the imposition of a fine.

The main disadvantage for the parties offering a compromise is the eventual sanctions they may suffer for non-compliance of the compromise.

The Antitrust Authority works to broaden and extend its cooperation with different competition authorities and international organizations from around the world. It has signed technical cooperation agreements with Chile, the Dominican Republic, Paraguay, Mexico, Peru, Ecuador, Spain, Brazil and is part of the Protocol of Fortaleza of Mercorsur. The Antitrust Authority also participates in international organizations such as the OECD, the “Latin American Competition Forum”, and UNCTAD’s COMPAL programme, among others. However, the level of cooperation of the Antitrust Authority and other agencies in relation to actual cases or investigations is extremely low, and clearly a point where the Antitrust Authority could improve.

Infringements to the Antitrust Law, are subject to the following sanctions:

1. The cessation of the acts or conducts prohibited by the Antitrust Law and, if relevant, the removal of their effects.
2. Fines of (i) up to 30% of the turnover of the product to which the infringement relates during the last fiscal year multiplied by the number of years of infringement. This amount cannot exceed 30% of the consolidated turnover archived by the offender’s economic group in Argentina during the last fiscal year; or (ii) up to double the economic benefit derived from the infringement. In the event that fines cannot be calculated using either method (i) or (ii), fines for each offender cannot exceed 200 million Administrative Units (as of April 2024, ARS 101,238 million, approximately US$115.48 million). If the fine can be calculated according to the two criteria established in points (i) and (ii), the higher fine will be applied. In case of recidivism, the amount of the fine shall be doubled for those companies that have been sanctioned in the previous ten years for anticompetitive infringements.
3. In case of breach of injunctions issued pursuant to section 44 of the Antitrust Law or compromises reached with the Antitrust Authority, a daily fine of up to 0.1% of the Argentinean turnover of the infringing economic group during the previous year. If a fine cannot be determined using this methodology, the amount of the daily fine cannot exceed 750,000 Administrative Units (as of April 2024, ARS 379,6 million, approximately US$433,000).
4. Order measures aiming at eliminating the distorting effects over competition or the request to a competent judge to order that the offending companies be dissolved, liquidated, spun off or divided.
5. Suspension from the National Registry of State Suppliers for up to 5 years. The exclusion may be for up to 8 years in case of the bid-rigging conducts established in section 2, paragraph (d) of the Antitrust Law.

In addition, section 57 of the Antitrust Law makes companies liable for the conduct of individuals who acted on their behalf, with the help or for the benefit of the company, even if the individual’s representation is rendered ineffective.

Lastly, section 58 of the Antitrust Law provides the joint and several liability of directors, managers, administrators, trustees, or members of the Statutory Auditors Office, agents or legal representatives of the infringing legal entity who by means of their action or omission of their duties of control or supervision, had contributed, encouraged, or allowed an infringement to the Antitrust Law. In such a case, a complementary sanction of inhibition to trade may be imposed for one to ten years to the companies and individuals listed above.

Despite certain provisions in the Criminal Code (i.e. in particular sections 300 and 301) that prohibit certain conduct akin to collusion, in practice these conducts have never been applied in particular thus it is reasonable to conclude that there is no criminal liability for cartel conduct in Argentina.

Section 56 of the Antitrust Law establishes that the Antitrust Authority will set the fines based on: the severity of the infringement; the damage caused to all affected by the anticompetitive practice; the benefit obtained by all involved in the practice; the deterrent effect; the value of the assets involved at the time the infringement was committed; the intention, time period, the companies’ market share; the market size affected; the time frame of the practice and the records of the responsible company, as well as their economic capacity. Collaboration with the Antitrust Authority in the investigation of the conduct may be considered a mitigating factor in the graduation of the sanction.

The maximum level of fines imposed by the Antitrust Authority in a recent cartel case in Argentina was in 2014, in which the Antitrust Authority imposed fines totalling ARS 1,060 million to several car manufacturers alleging the existence of an illegal price-fixing cartel by means of selling automobiles in the Province of Tierra del Fuego at the same price (or even higher price) than those charged for the same automobiles in the continental territory of Argentina. As products and services sold in the Province of Tierra del Fuego are exempted from certain national taxes, the fact that cars were sold at a price that was similar to the price charged by car manufacturers in the rest of Argentina led the Antitrust Authority to understand that the companies were fixing the prices.

Pursuant to section 58 of the Antitrust Law controlling companies may be joint and severally liable for the illegal conduct of their subsidiaries. Put differently, the Antitrust Authority has the power to and may seek to collect the full amount of the fine from the controlling legal entities as a consequence of the illegal activities of their subsidiaries, in particular, if the subsidiary has an inability to pay, totally or partially, the fine.

Both private and class actions are available for the infringement of the cartel provisions.

Section 62 of the Antitrust Law provides that any person damaged by an anticompetitive practice may seek damages under civil and commercial law before a competent judge. To seek damages, there is no need to have a previous resolution issued by the Antitrust Authority, allowing for either ‘follow on’ or ‘stand alone’ actions.

For follow-on damages actions, the Antitrust Law states these will be subject to an expedited procedure set forth in the Code of Civil and Commercial Procedure. Both direct and indirect purchasers have standing to sue for damages. The competent judge shall base his decision in the resolution issued by the Antitrust Authority.

As for class actions, the procedural rules allow for class action or representative claims in Argentina pursuant to the 2009 Supreme Court Halabi ruling.

Nonetheless, there are no known cases of successful civil damage claims for cartel conduct in the past in Argentina, nor of any substantial out of court settlement.

The Antitrust Law establishes that claimants may seek damages under civil and commercial law, but given the lack of case law, it is not possible to assess the extent to which damages can be recovered.

Section 64 of the Antitrust Law provides that the fine will be set by the competent judge according to the severity of the infringement and other circumstances of the case, regardless of any other compensation that may apply.

Once a cartel infringement decision is issued by the Trade Secretariat, it can be appealed by the infringing companies and individuals to the Civil and Commercial Federal Court of Appeals (or the competent Federal Court of Appeals in the provinces of Argentina).

Section 66 of the Antitrust Law establishes that the following Antitrust Authority’s resolutions can be appealed:

1. Imposition of fines.
2. Cease-and-desist orders.
3. Dismissal of a claim filed before the Antitrust authorities.
4. Rejection of a leniency application.
5. Injunctions adopted pursuant to section 44 of the Antitrust Law.

However, it is well-settled case law that any other decision adopted by the Antitrust Authority that causes sufficient and irreparable harm can be appealed by the addresses of such decision.

Appeals should be filed within fifteen business days as of the notification of the Antitrust Authority’s decision. Thereafter, the Antitrust Authority has ten business days to send the administrative file to the Federal Civil and Commercial Court of Appeals (or the competent Federal Court of Appeals in the provinces of Argentina).

The Court of Appeals’ decision may be appealed, as a last resort, before the National Supreme Court of Justice. In fact, the most important cartel cases decided by the Antitrust Authority have been appealed before the National Supreme Court of Justice.

Pursuant to section 67 of the Antitrust Law, an appeal does not suspend the effects of the decision issued by the Antitrust Authority (except in the case of fines provided the parties submit a surety bond with the cost of appeals).

In April 2022, the Antitrust Authority sanctioned Molino Cañuelas and three trade associations with fines that amounted to AR$445 million for setting up a price-fixing cartel in the wheat milling market. As part of the investigation, the CNDC unearthed the existence of an agreement entered by the three trade associations so-called “General Agreement for the Defense of Free Competition in the Milling Industry” (the “Agreement”), which had the aim of fixing a minimum price for wheat as well as to exchange commercially sensitive information. Pursuant to the Agreement, the three trade associations had powers to monitor its compliance by the wheat milling companies, as well as to impose fines in case of breach of the Agreement. This case is currently under appeal.

In November 2022, the Trade Secretariat sanctioned certain nightclubs of the city of Bariloche (Province of Rio Negro, Argentina) with fines totalling AR$240 million. As a result of a complaint filed in year 2018 by Powerlink S.R.L. (a nightclub involved in the student parties’ market in the city of Bariloche), the CNDC initiated an investigation against Alliance S.A. and Grisú S.R.L. for a potential abuse of a dominant position and cartelization, in which it verified the existence of a price-fixing and market allocation agreement between Powerlink, Alliance and Grisú to establish a single price for the tickets offered to student tourism agencies. The Trade Secretariat issued a cease-and-desist order and imposed a fine against the offenders. One of the companies (i.e., Powerlink) was exempted from a fine, even though the company was part of the cartel agreement and did not file an application under the leniency programme provided for in the Antitrust Law. The CNDC acknowledged that Powerlink filed the complaint that triggered the investigation and “based on the cooperation provided during the proceedings and the evidence provided” to the authorities, added to “the coercion exercised by the dominant companies” that led Powerlink to sign the agreement, there was sufficient merit to exempt that company from a fine. This is a brand-new enforcement development, and it remains to be seen whether companies collaborating in the investigation with the Antitrust Authority could qualify for an exemption to a potential fine despite being part of a cartel. This case in currently under appeal.

In recent years, the Antitrust Authority has significantly increased its battle against cartels, having imposed fines, in different industries and sectors of the economy. Generally, in cartel cases the fines imposed are more severe than in abuse of dominant position cases, in which case they are always appealed by the companies sanctioned. However, there were no known cartel cases that ended up in the imposition of sanctions in 2023. As for 2024, up until March, the Antitrust Authority has closed an investigation for a cartel allegation in the medical oxygen supplied through tenders to public hospitals in the province of Buenos Aires. As for approaches to compromise, in both the nightclubs case and the wheat flour case, the Antitrust Authority declined to accept the commitments offered by the investigated parties. In this last one, the investigated parties offered commitments, which were rejected by the Antitrust Authority on the grounds that they did not eliminate the damages generated to the general economic interest and that, consequently, the proposals made did not merit their acceptance. These corroborate traditional case law that holds that commitments are not feasible in cartelization cases.

It is expected that a new Antitrust Law will be passed in the near future due to the new elected government in December 2023. As soon as it took office, it sent a bill to Congress proposing a wide range of legal changes, including the adoption of a new antitrust law. Among the main modifications, the bill proposed a significant increase of the notification thresholds of economic concentrations; the adoption of an ex-ante or suspensory merger control regime for economic concentrations; the creation of a new antitrust authority; and the introduction of coordinated boycotts as a form of cartelized conduct, among others. The bill was approved by the House Committee but was later withdraw by the government due to political issues. The bill was sent again to Congress in April and is expected to be debated in May 2024.