On 28 May 2024, the Secretariat of Industry and Commerce of the Argentine Republic approved the Regulation for the Implementation of the Leniency Programme (the “Regulation”), which introduces amendments aimed at improving the efficiency of the leniency programme, from the application of the marker to the granting of the leniency benefit.
The Regulation is in addition to the provisions of Chapter VIII of the Antitrust Law, No. 27.442 (the “LDC”), which introduced the leniency programme into Argentine law
The Regulation contains new features that facilitate and encourage leniency applications in Argentina, such as the following:
- The creation of a Leniency Unit, within the National Commission for the Defence of Competition, which will be in charge of receiving and processing applications.
- The delimitation of a marker application process.
- The delimitation of the leniency application process.
- Novelties on the classification and granting of penalty reduction and exemption benefits.
The main goal of the adoption of the Regulation is to provide clarity to potential applicants on the basic aspects of the leniency application procedure in Argentina. It also provides details on the confidentiality of the application and the accompanying information, as well as on the treatment that the competition agency will give to this information.
The Regulation creates the “Leniency Unit”, an independent entity of the National Commission for the Defence of Competition. This unit will be the only one authorised to intervene in the procedure and access the information provided by the applicant, and will be responsible for granting the markers and handling leniency applications. It will also conduct hearings, request information from applicants and request their cooperation throughout the process. At the conclusion of the procedure, the unit will issue an opinion recommending the granting or rejection of the Conditional Waiver or Reduction of Sanctions.
The Regulation also establishes a procedure for the application for “markers”, which requires minimum information such as a description of the disclosed practice and the affected market. Within 10 days from the submission of the application and, if there are no omissions or errors in the information, the Leniency Unit will decide on the application and issue a Marker Certificate. If the application is rejected, the applicant will have 3 days to withdraw the information and documentation provided, which the Clemency Unit will destroy if not withdrawn.
To formalise the leniency application, once the marker has been obtained, the applicant must participate in a Coordination Hearing within 10 days of the issuance of the marker certificate. The application must include detailed information on the disclosed practice, the participants, the affected market and the impact on Argentina. In addition, information must be provided on whether the application was or will be submitted to other authorities.
During the coordination hearing, a timetable will be established for the submission of information and/or documentation to prove the disclosed practice. The Regulation mentions as examples documents proving the practice and the participation of the applicant, details of meetings and means of communication used for anti-competitive coordination and testimonies of those involved.
The benefit of exoneration or reduction of sanction will be granted by the NCDC, upon recommendation of the Leniency Unit, and will depend on the applicant’s compliance with the duty to cooperate. Once the conditional benefit has been granted, the information will be forwarded to the National Directorate of Anti-competitive Conduct for the corresponding investigation. If the leniency application is rejected, the information provided may not be used for any purpose and may be destroyed by the Leniency Unit.
The final benefit of exoneration or reduction of sanction will be granted when issuing the decision on the imposition of fines or sanctions, provided that the applicant has complied with its duty to cooperate. This benefit will be enforceable against claims for damages, although the beneficiary will remain liable vis-à-vis competitors, suppliers and other injured parties if it is not possible to obtain full reparation of the damage.
The Regulation also allows for the withdrawal of the leniency application prior to the granting of the conditional benefit, obliging the Leniency Unit to return and delete the information provided. Withdrawal will not prevent the Enforcement Authority from investigating conduct related to the anti-competitive agreement.
Finally, the Regulation reserves the power of the Leniency Unit and the NCCD to request authorisations to allow consultations and exchanges of information with competition authorities of other jurisdictions.
This Resolution entered into force on 28 May 2024.
