The Act was published in the Official Gazzette on July 30, 2007 although Chapter IV of the referred Act, grants Executive Power 120 days to regulate some complementary aspects.
This new Act revoked Sections 13 to 15 of the Act 17.143 which -until the new Act- laid down the bases of the legal framework governing competition issues in Uruguay.
It is relevant to point out that Act 18.159 is an ‘Antitrust Act’ in contrast with the old regime which was embodied in three Sections included in a general Act.
Notwithstanding the foregoing, the essence of the old regulation was maintained in this new Act although the latter is wider in its scope and in the aspects that were regulated.
As the Act establishes in its Section 1, its purpose is to promote the well-being of consumers and users ‘by means of the promotion and defense of competition, the stimulation of economic efficiency, freedom and equal access conditions of companies and products to markets’.
The Act also establishes in its Section 2, as was set forth in the old regime, the general principle that ‘all markets are subject to the principles and rules of free competition’ with the exception of the ‘limitations established by law due to reasons of general interest’.
As a corollary of this general principle, the Act forbids certain practices which could affect competition.
In this sense, the second paragraph of Section 2 considers to be forbidden practices ‘the abuse of a dominant position, as well as all practices, conducts or recommendations, either individual or coordinated, which have as effect or purpose to restrict, limit, hinder, distort or obstruct the current or future competition in the relevant market’.
With the exception of some changes in the wording, in principle, the solution adopted by Act 17.243, is maintained by the new Act.
Notwithstanding the foregoing, there are two differences in comparison with the previous system:
- The prohibition of conducts which have the ‘purpose of restricting, limiting…’. This means that all conducts performed with the aim of causing a restriction of competition are forbidden.
- The requirement that the distortion of the market causes a relevant damage to the ‘general interest’ as a condition for conducts to be forbidden is now eliminated.
Another important innovation of the new Act is that the expression ‘Abuse of Dominant Position’ is now expressly defined. Section 6 of the Act expressly defines what is ‘abuse of dominant position’ for the purpose of Section 2 dividing the concept in two parts.
Firstly laying down the following: ‘one or various agents have a dominant position in the market when they can substantially affect its relevant variables independently of the conduct of its competitors, buyers or suppliers’.
Secondly, the Act establishes that there is ‘abuse’ when the agent/s which are in a dominant position act ‘in a wrongful manner with the purpose of obtaining advantages or causing damages to others, which they could not have obtained or caused if they did not have had a dominant position’.
The Act correctly uses the concept of ‘Relevant Market’. In this sense, Section 5 sets forth that with the purpose of evaluating if a practice is or is not competitive, the relevant market in which such activity is performed should be determined in the first place. This means that a practice cannot be considered to be anticompetitive in itself but with respect to a certain market.
Finally, it is important to point out that the first commentators of the new Act have said that the reference to ‘consumers and users’ as the Act’s final beneficiaries, it would not seem to be a mere declaration, because it could have important effects since it could serve as basis to argue that certain practices and conducts could not be considered to be anti-competitive if they finally benefit such class.
Hector FERREIRA, IDI Country Expert for Uruguay
The text of the Law can also be found in the Legislation Section of the Website