Press Release
C. 22-13 th
El Salvador, September 19 , 2013.
Final phase of Alba Petroleos sanctioning procedure The Superintendence Competition (CS) concluded the investigation phase of the administrative sanctioning procedure initiated against Alba Petroleos de El Salvador for having omitted to request prior authorization to purchase certain service stations. The file will be sent to the Board of Directors (BD) of the SC in order for this authority to issue its final decision, pursuant to its analysis. “The Superintendence will rule as always: pursuant to the law, with complete independence, and without jeopardizing the delicate information it has access to”, asserted Francisco Diaz Rodriguez, Competition Superintendent.
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The past month of July the Competition Superintendence began an administrative sanctioning procedure to determine if the company Alba Petroleos de 1 El Salvador omitted to request authorization to the CS before executing certain operations that could constitute acquisitions that require prior authorization from the competition agency. This omission could be an infringement to Provisions 33 of the Salvador Competition Law (CL) and 23 of its Regulations. Said procedure is in its final stage and the file will be sent to the Board of Directors (BD) of the Competition Superintendence, collegiate and maximum authority of this institution, legally empowered to impose the respective sanctions. The Board members will analyze the file to issue a final ruling in this procedure. Upon the file´s receipt, the BD has less than three months to definitely decide this case. About ANEP´s request to intervene in the sanctioning procedure
The Superintendence dismissed the intervention of the National Association of the Private Enterprise (ANEP, its Salvadoran acronym) to intervene in the administrative sanctioning procedure against Alba Petroleos. Pursuant to the respective analysis, the CS concluded that the result of the aforementioned procedure will not directly affect ANEP. ANEP lacks “direct and legitimate” interest in said procedure whose purpose is to investigate the infringement of the obligation to file a prior request for a merger or acquisition, not the commitment of an anticompetitive practice; thus, this result will only legally affect the investigated economic agent, and, eventually, the parties that had business with it. The arguments presented by ANEP in its writ to revoke the dismissal ruling were repetitive and did not add any new elements to the initial request; hence, it was also dismissed. “If the CS allowed ANEP´s intervention in this procedure, the agency would be opening the door for any other institution or person to argue an interest to participate in any case, even if it is not directly affected by the procedure´s result, jeopardizing the delicate information the Superintendence has access to”, affirmed Francisco Diaz Rodriguez, Competition Superintendent. The Competition Superintendence acknowledges the diligence showed by ANEP in the above cited case and expects said Association to continue to be as vigilant of the conducts ant actions of any economic agents who
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Alba Petróleos de El Salvador Sociedad por Acciones de Economía Mixta de Capital Variable (S.E.M. de C.V.)
does not comply with the competition legal framework; and, if necessary, to report those anticompetitive practices committed by any agent, including, of course, any of its members. With respect to the procedure followed in this case, ANEP argues that the legal framework to applied is the Law of the Imposition of Administrative Arrests or Fines (LPIAMA, its Salvadoran acronym), not the Competition Law. Said reasoning surprised the CS since the last law only authorizes the Superintendence to impose a fine, which is precisely what ANEP criticizes, expecting the imposition of other sanctions. The procedure applied in this case is set forth in Provisions 61 letter b), 72, and 73-A of the Competition Law Regulations. Regarding ANEP´s request to recuse one of the members of the Board of Directors, the Superintendence explained to ANEP in its decision that said request can only be made to the Board itself (no to the Superintendent) when the case is sent to the Board for final ruling. Furthermore, only those who have legitimate interest to intervene in a procedure can file such a request, and this is not ANEP´s case.