Bulletin No. 23 - Free Competition

BULLETIN Edition



Nº 23


free competition

PANAMA












February, 2020
Defending your freedom to compete



































Our Contributors ...........2 Present ...........3 Numbers ...........8


X National Day of Free Sanction to Refinería ACODECO accomplish 100%
Competition Panamá, S. de R.L. with the Transparency law

BULLETIN
2 / Our Contributors
Free Competition
PANAMA
X National Day of Free Competition



By: Héctor Aguila.


The National Directorate of Free Competition of ACODECO, celebrated the X National Day of Free
Competition, which is celebrated on February 1, each year, carrying out various activities and training.



One of them was the publication of an institutional video, showing in a didactic way, two shave ice
makers (economic agents) agreeing to set a price, reason that motivates consumers to report them to

ACODECO, aspects that are sanctioned until a million dollars.


This promotional video, served as the basis for the launch of the 3rd. Video Contest, Business Edition,

“I Compete” awards, held on February 5, 2020, in Panama City, with the theme How does my company
comply with free competition in Panama?, by preparing a video that will explain to the population, in

a didactic way how companies are committed to free competition, using social networks and the
hashtag #Yosicompito of ACODECO to publicize their videos.



The finalist companies of the award were seven (7), being these: Grand Tours, S.A., Yogen Fruz,
Cervecería Nacional, S.A., Relojín, S.A., Más Móvil, Grupo Sílaba, S.A. and Hospital Nacional, S.A.,
competing for the first three positions.



As part of the preamble, the presentation of the international speaker was given by Dr. Juan David
Gutierrez, who has extensive experience in competition law issues, with the theme: "The necessary

ingredients for a successful compliance program."



After that, each participating company shared their experiences and the importance of having good
practices in the free competition, that allows them to be competitive in their economic activities,
complying with the law in order to not affect the consumer.



After the closed deliberation, the three winning companies were selected, being these, in the following

order: First place Yogen Fruz, second place Grupo Sílaba, S.A. and third place Cervecería Nacional, S.A.
On February 6, 2020, another training was conducted by Dr. Juan David Gutiérrez, with the topics:



Competition Law in Latin America, the challenges of competition authorities in digital markets,
collusion, algorithms and artificial intelligence and strategic planning processes and evaluation of
competition authorities.

BULLETIN
Free Competition 3 / PRESENT
PANAMA
Sanction to Refinería Panamá, S. de R.L.






Background: By ruling of April 3rd, 2019, the Third Superior Court of
Justice of the First Judicial District of Panama, decided on
In 2009, ACODECO filed a complaint against Refinería the appeal presented by REFPAN, confirming in all its
Panamá, S. de RL (here in after REFPAN) in formal court for parts the sentence issued by the first instance. In
the alleged commission of an illegal monopolistic practice accordance with this decision, once said ruling was
within the market service for the disposal of liquid fossil executed, it was up to ACODECO, to impose
fuels (light and improved diesel, and 91 and 95 octane administrative sanctions for relative monopolistic
gasoline) at the cargo terminal of the former Panama practices in accordance with the provisions of the law.
Refinery, Las Minas Bay in the province of Colon, in
controversy of Law 45 of October 31st, 2007. Administrative Sanction:

By judgment No. 107-15 of December 15th, 2015, the The National Direction of Free Competition by Resolution
Ninth Civil Circuit Court of the First Judicial Circuit of No. DNLC-HCE-012-19 of June 27th, 2019, impose a
Panama, decreed in the first instance the restrictive and penalty fee for the sum of TWO HUNDRED FIFTY
illegal nature of the demanded practice, in the relevant THOUSAND DOLLARS ($250,000.00), to the economic
market described as “the service of dispatch of liquid fossil agent REFPAN, for incurring in relative monopolistic
fuels (91 and 95 octane gasoline and light and improved practices illicit, according to the provisions of acticle 16
diesel) to tank trucks of wholesale companies in the numeral 9 of Law 45 of October 31, 2007. An appeal
Republic of Panama”, the action, considered illegal, against the Penalty Resolution, was filed by the company,
consisted in the quotas or shifts for the dispatch of these submitting the decision to the General Administrator of
fuels just in the combined rack, based on the participation ACODECO, who through Resolution A-DNLC -1862-19 of
of the market of each distribution company (wholesaler) December 2, 2019, cofirmed the application of the
that commercialized the product nationally; behaviour penalty fee.
that was used to unreasonably establish exclusive
advantages that affected at least one economic agent Once the government channel was exhausted, the
participating in this market, thus violating article 16 company proceeded to pay the amount of the sanction.
numeral 9 of Law 45 of 2007, in response to the unilateral
act that the defendant REFPAN exercised.

BULLETIN
4 / PRESENT
Free Competition
PANAMA
Case against COSTA DEL ESTE INFRASTRUCTURE, INC.



The National Authority of Public Services by Resolution
AN No. 1630-Telco of April 21, 2008 (Resolution 1630),
which adopts special measures related to the right of
users to access services public telecommunications orders
all telecommunication public service concessionaires to
refrain from entering into agreements, contracts or
agreements with building developers, business premises
owners and executive boards and / or assemblies of
owners of horizontal properties or with any natural or
legal person that have the purpose of granting exclusive
rights for the provision of such services or grant the
administration of the telecommunications infrastructure
of buildings with powers that allow limiting the access of
other concessionaires to these facilities.

Regarding the relevant market, this is defined as “the
The National Direction of Free COompetition (hereinafter access service to all telecommunicatins networks and the
DNLC), of ACODECO started by complaint, by the legal elements and of the civil works that support them
representative of the company INTERFAST PANAMA, a necessary for the installation of the optical fiber present in
telecommunication service concessionaire, a preliminary the P.H. Plaza del Este and the P.H. Originario Residencial
investigation against COSTA DEL ESTE INFRASTRUCTURE, Santa María”.
INC. (CEI), for the alleged commission of relative
monopolistic practices, contained in Law 45 of October Taking into consideration that theset of
31, 2007 (hereinafter Law 45), to the detriment of telecommunication networks and the elements of the
INTERFAST and its clients. civil works that support them, installed in buildings,
commercial premises, and / or horizontal properties,
Based on the documentation provided to the file, the constitute common telecommunications infrastructures,
DNLC considered that there were indications of the declared as essential facilities by Resolution 1630, and
posible realization of a relative monopolistic practice, by that this essential facility was the one that could be
the economic agents CEI Inmobiliaria Plaza del Este, S. A. subject to some type of restrictions.
and Ideal Living Corp., through an exclusivity agreement
that would be unreasonably preventing access to an The investigation and documentation in the file do not
essential facility to potential competitors in the market. show actions by the economic agents investigated, in the
direction of preventing or restricting access to the P.H.
Through Resolution No. DNLC HCE-028-17 of September Plaza del Este and P.H. Originario Residencial Santa María
19, 2017, the DNLC decided to order the official opening to the company INTERFAST, but quite the opposite;
of the administrative investigation by the alleged INTERFAST's refusal to sign a commercial agreement for
commission of relative monopolistic practice, against CEI, access to the pipelines of this P.H. if they have to pay for
Inmobiliaria Plaza del Este, S.A. and Ideal Living Corp., access.
violation of numeral 9, article 16 of Law 45, which states,
“In general, any act that unreasonably damages or For the reasons stated, the DNLC through Resolution No.
prevents the process of free economic competition and DNLC-MAC-020-19 of December 19, 2019 orders the
the free participation in the production, processing, closing and filing of the administrative file for not having
distribution, supply or marketing of goods or services ”. sufficient evidence to prove the violation of numeral 9 of
the article 16 of Law 45.

BULLETIN 5 / PRESENT

Free Competition
PANAMA
Case against CABLE ONDA, S.A.


The National Direction of Free Competition (hereinafter agreements with building developers, business premises
DNLC), of ACODECO started by complaint, by the legal owners and executive boards and / or assemblies of
representative of the company INTERFAST PANAMA, a owners of horizontal properties or with any natural or
telecommunication service concessionaire, a preliminary legal person that have the purpose of granting exclusive
investigation against CABLE ONDA, S.A. (CO), for the rights for the provision of such services or grant the
alleged commission of relative monopolistic practices, administration of the telecommunications infrastructure
contained in Law 45 of October 31, 2007 (hereinafter Law of buildings with powers that allow limiting the access of
45), to the detriment of INTERFAST and its clients. other concessionaires to these facilities.

Based on the documentation provided to the file, the Regarding the relevant market, this is defined as “the
DNLC considered that there were indications of the access service to all telecommunications networks and the
possible realization of a relative monopolistic practice, by elements and of the civil works that support them
the economic agents CO, Commercial Center Developers, necessary for the installation of the optical fiber present in
Inc. y Roble International Corporation, S.A., through an the P.H. Multiplaza Pacific”.
exclusivity agreement that would be unreasonably
preventing access to an essential facility to potential Taking into consideration that the set of
competitors in the market. telecommunication networks and the elements of the
civil works that support them, installed in buildings,
Through Resolution No. DNLC HCE-016-17 of July 24, commercial premises, and / or horizontal properties,
2017, the DNLC decided to order the official opening of constitute common telecommunications infrastructures,
the administrative investigation by the alleged declared as essential facilities by Resolution 1630, and
commission of relative monopolistic practice, against CO, that this essential facility was the one that could be
Commercial Center Developers, Inc. y Roble International subject to some type of restrictions.
Corporation, S.A., violation of numerals 5 and 9, article 16
of Law 45, which states, “5 The unilateral action consisting The investigation and documentation in the file do not
in refusing to sell or provide, to certain people, available show actions by the economic agents investigated, in the
goods, or services normally offered to third parties, direction of refusal to provide goods or services available
unless there is a breach by the client or potential client of and normally available to third parties, prevent or restrict
contractual obligations with the economic agent, or that access to the company INTERFAST, but quite the opposite;
the commercial history of the client or potential client a refusal of INTERFAST not to pay for access to the
demonstrate a high rate of returns or damaged goods”. pipelines of the P.H.


“9. In general, any act that unreasonably damages or For the reasons stated, the DNLC through Resolution No.
prevents the process of free economic competition and DNLC-MAC-001-2020 of January 31, 2020 orders the
the free participation in the production, processing, closing and filing of the administrative file for not having
distribution, supply or marketing of goods or services. ” sufficient evidence to prove the violation of numerals 5
and 9 of the article 16 of Law 45.
The National Authority of Public Services by Resolution
AN No. 1630-Telco of April 21, 2008 (Resolution 1630),
which adopts special measures related to the right of
users to access services public telecommunications orders
all telecommunication public service concessionaires to
refrain from entering into agreements, contracts or

BULLETIN
6 / PRESENT
Free Competition
PANAMA



Training Day for Real Estate and Home Developers


ACODECO, through the Unit of Cost Increase Analysis (UAAC), held on
January 23, 2020, the training day for real estate agents and developers.

Issues related to the activation in the contract of sale of the clause for the
increase in the price of new homes due to cost increases were addressed.


The verification of the cost increases consists of the revision of the
information by ACODECO in order to confirm that the documents
provided by the real estate agencies or developers correspond to the
project and that it is supported.


In that sense, the training day focused on the explanation based on the fact that the verification can be requested, both
by the economic agent after having reached 80% progress of the work, and by the consumer, after being notified of the
increase. They were given the detailed list of the requirements that companies must meet when requesting the price
adjustment verification in the respective new housing projects, as follows: the presentation of the budget of the work
duly authenticated, the invoices or purchase orders, the list of materials subject to increase, a copy of the purchase and
sale contracts, the clarity of the terms associated with the presentation of the information, the date on which the
project reaches 80% progress and the way in which documentation must be provided.

In addition, emphasis was placed on the importance of voluntary submission by the companies prior validation, as it can
be an effective tool to ensure compliance with Resolutions No A-063-15 of July 3, 2015 and No. A-096-17 of December
12, 2017, as established by Law 45 of 2007.

The activity was held in the José Ángel “Chino” Montero hall of ACODECO, and 19 economic agents took part with a
participation of 28 people. The participants had the opportunity to exchange their ideas with the UAAC employees
asking the questions they considered necessary to solve the questions or doubts related to the theme of the 11
construction materials that make up the basic basket of materials, the methodology used to determine the cost of labor,
the interest rate and other aspects that are included in the aforementioned resolutions, also they showed great interest
so that the training sessions on real estate issues continue, making known through a satisfaction survey that the
initiative is positive.


For the UAAC, the day was satisfactory, since the objectives of transmitting the necessary information to the economic
agents were fulfilled so that they consider what are the requirements that must be met to speed up the process of
verification of price adjustment in projects of new homes and encourage companies to submit the application before
notifying consumers of the increase.


These types of situations and / or queries can be made by accessing our social networks.

BULLETIN

Free Competition 7 / PRESENT
PANAMA




ACODECO participates in International contest about Competition advocacy





The International Network of Competition and the World Bank Group
launched the Competition Defense Contest 2019-2020. The objective of
this contest is to highlight the key role played by competition agencies,
industry regulators, other government agencies and non-governmental
organizations in promoting competition, by showing their success stories
in this regard.


Therefore, ACODECO is competing with the topic Extended Basic Medicine Basket (CABAMED), which aims to increase
competition between laboratories and economic agents by publishing a list of 153 active principles of reference and
generic medicines, so that consumers can obtain more price information and thus be able to compare before making
the decision to buy a medicine to treat a particular medical condition, after consulting their doctor.
















Mergers Workshop, Lima Perú







From November 19 to 22, 2019, ACODECO participated in the Mergers
Workshop and the launch of the OCDE Regional Competition Centre
(RCC) for Latin America and the Caribbean, held in the National
Institution of Competition Defense and Protection of Intellectual
Property (Indecopi), located in Lima Perú.

The workshop allowed participants from various countries to familiarize
themselves with practical cases of economic mergers and posible
existing remedies.


On the other hand, the necessary contacts were made so that the
officials form ACODECO’s National Directorate of Free Competition can
be trained, in the future, in this important center.

BULLETIN
8 / NUMBERS
Free Competition
PANAMA
ACODECO accomplish 100% with
the Transparency law
















ACODECO has satisfactorily accomplished with Transparency according to Law N° 6 of January 22,
2002, that dictates norms for Transparency in public management, maintaining the 100% evaluation

obtained in the monthly monitoring done by the National Authority for Transparency and Access to
Information (ANTAI). Reaffirming the commitment to ethics and transparency in public management,

ACODECO makes available to the public, updated information on its website, following the guidelines
established by the aforementioned law. It should be emphasized that this has been the score that has

been received in all audits done so far regarding the management of this entity.









DIRECCIÓN DE TRANSPARENCIA Y ACCESO A LA INFORMACIÓN
MONITOREO DICIEMBRE 2019






Reglamento Interno. Políticas Institucionales. Plan Estratégico. Manual de Procedimientos. Organigrama. Seguimiento de Documentos. Descripción de Formularios. Reglas de Procedimientos. Proyectos Institucionales. Estructura y Ejecución Presuestaria. Estadística. Programas Desarrollados. Actos Públicos Contrataciones. Contratación de Funcionarios. Designación de Funcionarios. Planillas. Gastos de Representación. Viáticos. # de solicitudes de in




Artículo 9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 10.1 10.2 10.3 10.4 10.5 11.1 11.2 11.3 11.4 11.5 Viajes. 11.6 26.1 26.2 26.3 27.1 0.1

Autoridad de Protección al Consumidor 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 24 100
y Defensa de la Competencia

Panama Free Competition Bulletin reaches its edition No. 23






BULLETIN









free competition



PANAMA









The National Directorate of Free Competition of the ACODECO releases every three months from
September 2015 to date through the National Free Competition Bulletin of Panama, the achievements, recent
goals, investigations, presented demands, competition law, seminars between many other

management activities.


The objective of this newsletter has been to promote and publicize both national and international actions in
defense of competition in Panama, as highlighted in its slogan, "Defending your Freedom to Compete".


On the other hand, an important aspect to highlight is that the editing and writing team of the articles published in
this bulletin are lawyers and economists who are actively working day by day within the
Directorate.


We thank you in advance to be part of our readers.