Due Process And Competition Law: Global Principles, Local Challenges, An Argentine Perspective PABLO TREVISAN* Comisión Nacional de Defensa de la Competencia ABSTRACT: The right to due process is one of the fundamental guarantees on which the entire system of protection and respect for human rights is built. Due process plays a key role on competition enforcement proceedings. In this regard, competition authorities shall operate within a framework that ensures that fundamental due process rights of the parties concerned are respected. In this regard, when assessing the performance of authorities as well as of general antitrust law policy and enforcement in a specific country or region, the level in which due process is respected is fundamental. Argentina is no exception to this rule. We hope the enactment of the New Competition Act, as well as the recent improvements introduced under a rejuvenated enforcement, would provide the final launch of a vigorous enforcement and long term antitrust policy in Argentina, which shall show a definitive respect to the right of due process. All liberties are futile, if they cannot be claimed and defended in trial and if the order of this trial it is not based on respect for the human person Calamandrei1 I. Introduction: Concept of Due Process The right to due process is one of the fundamental guarantees on which the entire system of protection and respect for human rights is built, through which the limits of state power are framed. Due process of law is an inalienable guarantee enjoyed by all persons, since it establishes limits to the exercise of power by the various State bodies vis-à-vis natural persons, representing a fundamental protection for the respect of the rights of the individuals. Various constitutional texts speak of “due process”. Many of these expressions are related, directly or indirectly, to certain terms contained in the English Magna Charta and * Pablo Trevisan is a Commissioner at the Comisión Nacional de Defensa de la Competencia. The opinions expressed in this paper are the author’s opinions and not necessarily those of the CNDC. The author is extremely honored to participate in this tribute to Prof. Frederic Jenny. The author wishes to thank the editorial committee for giving him the chance of participating in this beautiful endeavor. 1 Piero Calamandrei, Processo e Giustizia, en Atti del Congresso Internazionale di Diritto Processuale Civile, Padova, 22 (1953). 1 its subsequent development in the United States. 2 More specifically, the Fifth Amendment introduced in 1791 to the Constitution of the United States, constitutes the direct antecedent of Section 18 3 of the Argentine National Constitution (National Constitution). Due process plays a key role on competition enforcement proceedings. In this regard, competition authorities shall operate within a framework that ensures that fundamental due process rights of the parties concerned are respected, and that appropriate safeguards are established to ensure the enforceability of those rights by the parties concerned. Throughout this paper, we will make a general approach to the topic of due process, its concept and the importance it has in all acts of the State. We will then examine this issue from the specific perspective of competition law. In the first place, we will consider what the main international organizations have said about due process in the area of competition law. Second, we will analyse the benefits and shortcomings of the different types of authorities, agencies or institutions in charge of competition policies and how the design of the institutions can impact antitrust due process. Then, we will make a brief reference to the issues related to the judicial review of cases previously resolved by competition institutions. We shall finish with a brief account of the Argentine case, considering the improvements offered by the new Competition Act 27,442,4 which was enacted by the Argentine Congress on May 9, 2018 (New Competition Act). II. Due Process and Proceedings Traditionally, the North American conception of due process overflows the field of procedural law. Thus, due process could unfold in two fields: the substantive or material and the adjective or procedural. All the organs of the State, both in the exercise of materially jurisdictional, administrative or legislative functions, must comply with legal due process. In this sense, substantive due process, says Couture,5 becomes, in a broad sense, the guarantee that arises from a regular and correct elaboration of the law; but it is also the guarantee that this law elaborated by the Parliament or legislature is reasonable, fair and 2 The most cited antecedent of due process of law is the English Magna Charta (Magna Charta Libertatum), from King John (also known as John Lackland) of June 15, 1215, in which it was established that: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.” 3 Section 18, CONSTITUCIÓN NACIONAL [NATIONAL CONSTITUTION]: “No inhabitant of the Nation can be punished without prior trial based on law prior to the fact of the process, or judged by special commissions, or removed from the judges appointed by law before the fact of the case. No one can be forced to testify against himself . The defence in the judgment of the person and of the rights is inviolable.” 4 Act 27,442: http://servicios.infoleg.gob.ar/infolegInternet/anexos/310000-314999/310241/norma.htm. 5 Eduardo J. Couture,, El Debido Proceso como Tutela de los Derechos Humanos, La Ley 72, Buenos Aires, 802. 2 within the terms enshrined in the National or Federal Constitution. For its part, the concept of the judicial process, does not have a merely literal meaning, but also means the judicial application of the law and, by extension, the judicial interpretation of it. While substantive due process, as a guarantee of reasonableness, applies equally to decisions coming from any State organ, on the contrary, the determination of what due process guarantees of adjective due process—and with what scope—are applicable in the exercise of the different state functions, will depend on the particularities that are presented in each case and concrete process.6 For a process to satisfy this guarantee, it is necessary that it complies with the inescapable requirement of granting the individuals with the sufficient opportunity to participate with utility and sufficiency in said process. The guarantees of the process can be violated when the legislator institutes a form of unreasonable procedure, or when it deprives the basic elements so that a process can properly fulfil its purposes. Thus, a process will be due when it is fair in its development, ensuring the parties the broadest possible exercise of the defense. That is, this guarantee ensures that every individual—before the judge defines the fate of his claim (when he is a plaintiff) or the fate of the resistance to the claim of his opponent (when a defendant)—be heard broadly, arrange of the opportunity to offer and produce his proof and control the evidence offered by his opponent, to receive a sentence based on accredited facts and that is a consequence of the application of the current law.7 Currently, both in the Anglo-Saxon system and in the continental-European system, due process is considered a meeting point between constitutional law and procedural law. A fundamental human right and, also, an essential guarantee that opposes the abuse of power of the authorities, as well as the equalitarian contradiction in every type of process and enables the control of the constitutionality of lower courts’ rulings, of laws enacted by the legislative power and decisions of the administrator. In this sense, the constitutional support of substantive due process is found in Section 28 of the National Constitution, with respect to the laws, and in Section 18 of the same, in what refers to judicial decisions. The Argentine Supreme Court of Justice (CSJN, for its Spanish acronym) has stated that certain constitutional and conventional norms 8 “safeguard the right to effective 6 Federico G. Thea,, Las Garantías del Debido Proceso en la Toma de Decisiones Públicas, La Ley, SUPLEMENTO ADMINISTRATIVO, June 2009, 11 y ss. 7 Carlos Botassi, Debido Proceso, Fuentes Supranacionales y Procedimiento Administrativo, La Ley 2015- B, Buenos Aires, 41. 8 Certain conventional rules have been incorporated to the Argentine internal rules, being applicable to any situation that may be reached by them, after the National Constitutional reform of 1994. 3 administrative and judicial protection”, considering a guarantee that “supposes the possibility of occurring before the courts of justice and obtain a useful decision or decision from them”.9 In 1897, Joaquín V. González10 said that Section 18 of the National Constitution, as it contains all the guarantees in favour of the person, is the bulwark of individual liberty. This guarantee, in some way, constitutes a derivation of the principle of legality provided under Section 19 of the National Constitution, establishing that “no inhabitant of the Nation will be forced to do what the law does not mandate, nor deprived of what it does not prohibit”.11 The CSJN has said that “the guarantees of the natural judge, due process and defence in court demand that the court be established by law prior to the fact of the case” and that it be decided in a reasonable time, since “if the judgments could be delayed without a term, the rights may remain indefinitely without their proper application, with grave and unjustified prejudice of those who invoke it.”12 Likewise, it is important to highlight that in our country the sources of due process have been extended after the constitutional reform of 1994 that incorporated a series of human rights treaties into the National Constitution.