jueves, 9 de mayo de 2013

"The long awaited Executive Management of ProCompetencia, devoid of its powers." (A. Noboa).

N  O  B   O   A    P  A  G  Á  N   A  B  O  G  A  D  O  S


 24 de  abril de 2013, Sto. Dgo., R.D., Año V, Volumen IV


"The long awaited Executive Management of ProCompetencia, devoid of its powers." (A. Noboa).

Series: Comments on the draft Implementing Regulations of Law 42-08, on Competition Defense submitted for  public consultation by the National Competition Defense Commission  (ProCompetencia).

The appointment of the public official to hold the position of Executive Director of ProCompetencia, has been a long wait. Moreover, when the Board of Directors of the regulatory body has publicly stated, on several occasions, that without filling such vacancy, the law remains in a total state of suspense.

This despite the fact that the law contains clear mandates for other instances of the same institution, as well as for other administrative and jurisdictional entities. In that regard, the transitional provisions of Article 67 make sense only with respect to the tasks that involve the participation of the Executive Management. However, since its inception some years ago, within the highest authority of ProCompetencia a literal hermeneutic interpretation of the brief contents of Article 67 has prevailed.

The Dominican Telecommunications Institute (lNDOTEL, as known for its acronym in Spanish) has been an honorable example of a more reasonable understanding of the meaning and scope of Law No. 42-08. In a correct interpretation of the spirit of the legislator, they have invoked on more than one occasion the provisions of Law No. 42-08 (suppletive rule to the Telecommunications Law 153-98, in competition defense issues) in order to hear administrative office procedures under their competition. INDOTEL, in a teleological interpretation of Article 67 has not seen limits or impediments in invoking the substantive provisions that apply in the management of affairs in under their charge.

It is very surprising that, precisely the Board of Directors of ProCompetencia, which has given utmost importance to that appointment, issues and publishes for public consultation purposes the regulatory proposal at hand, which promotes the undermining of powers conferred by law for the Executive Management.  The instance that on more than one occasion they have deemed indispensable for the implementation of the law, not only in dispute proceedings, but in all matters under ProCompetencia, charge,  they know propose to extract therefrom powers that were granted by the legislature, to be reassigned to new sub-departments, to be created by the regulation proposed by the Board.

 Proposed text:

"Article 34. - From the organizational structure of the Executive management. Subparagraph a) of Article 34 of the Act is regulated in the following manner.

Paragraph I. The Sub-department of Competition Defense will have at least two divisions: one on Free and Effective competition defense and the other on Unfair Competition.

Paragraph II. The Unfair Competition Division will address the actions that are based on Articles 10 and 11 of the Law and sent the matter to the Division on Competition Defense, in those cases where it is deemed that a significant restriction of effective competition, capable to impairing the general welfare of consumers and users, is created.

Paragraph III. In all other cases, the Unfair Competition Division will seek restitution of fair competition with proposals for corrective measures to  regulate economic activities, for which it will refer the matter to the Sub-Department of Competition Promotion, with a recommendation, ad referendum of the Sud-department of Competition Defense, from which it depends.

Paragraph IV. In both cases, the Unfair Competition Division may additionally try to resolve the conflict between stakeholders, through mediation techniques or other alternative forms of dispute resolution. "(Emphasis added)

Neither the aforementioned Unfair Competition Division, nor the Sub-department of Competition Promotion, are legally established bodies and lack specific mandate to adopt, process in last instance, let alone to decide on the corrective measures set forth by the aforementioned Article, in paragraphs III and IV.

Therefore, the proposal sets a serious legal defect known as excess of powers, in this case of the Board of Directors, who promotes it. This regulatory reference would only be possible if the procedures were to fall on the Executive Management, the only body with such powers, under Law 42-08.

As for the powers set forth in Paragraph II, if they do not conclude before the instance with legal hierarchy to deal with such matters, the proposal becomes equally contrary to due process of law established as provided in the Law 42-08, in Article 33, paragraphs "a", "c" and "k"[1]1, with assign to the Executive Management all the formalities relating to the receipt, investigation and qualification of the cases. Moreover, the defect worsens while it is suggested that these sub-departments are provided with powers to emit final decisions, a power exclusive of the Board of Directors, under the provisions set forth in Article 31, paragraph "k"[2]2.

All this is confirmed in the administrative procedure described in Title III of Law 42-08. Therefore, in the context of the public consultation we have suggested the Board of Directors of ProCompetencia, to eliminate the proposed article for containing serious legal defects and violating the due process of law, both constitutional guarantees.


April 24, 2013.

[1]                             Section 33. (...) The Executive Director shall have, among others, the following functions: (...) a. Investigate and act ex officio in cases where there are indications in the market of violation of this law; c. Submit to the Board of Directos public accusations to impose administrative sanctions on the practices, actions, behaviors and other matters assigned to it by law; ... k. Direct, coordinate and control the administrative affairs of the various technical units of the Commission, as well as provide support in the exercise of their functions.
[2]                             Article 35, paragraph "i" of Law 42-08. Settle, in accordance with the principles and rules of this law and its regulations, safeguarding the public interest, the disputes of companies, and between companies and their customers or users, in matters governed by this framework.

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