Ecuador
Answer ... Articles 73 to 88 of the Organic Law for the Regulation and Control of Market Power (LORCPM) provide for fines, as well as structural and behavioural remedies (ie, corrective measures or injunctive relief).
Article 73 of the LORCPM empowers the Superintendence for Market Power Control (SCPM) to “issue corrective measures in order to re-establish the competitive process, prevent, impede, suspend, correct or revert conducts contrary to the LORCPM and prevent such conduct from happening again”. It further sets out a non-exhaustive list of examples as follows:
- an order to cease the anti-competitive conduct;
- an order to take specific actions or enter into specific contracts with the aim of re-establishing the competitive process; or
- the invalidation of anti-competitive clauses or provisions in legal documents.
Article 74 of the LORCPM provides the SCPM with some leeway to issue corrective measures specific to each case and states that the establishment of corrective measures does not preclude the regulator from imposing fines.
Article 76 of the LORCPM further provides that in case of non-compliance, partial or defective compliance or late compliance, the SCPM may issue fines and additional corrective measures, and may even appoint a comptroller to supervise compliance with the corrective measures.
Pursuant to Articles 78 and 79 of the LORCPM, abuse of dominance may be sanctioned with fines of up to 10% or 12% of the undertaking’s gross annual turnover (calculated by reference to the previous fiscal year), if this is categorised as a ‘serious’ or ‘very serious’ breach of the law.
Pursuant to Article 79 of the LORCPM, the SCPM may impose fines of up to 500 basic salaries (currently $212,500) on legal representatives or corporate directors who actively participated in the infringement.
Ecuador
Answer ... The SCPM has substantial discretion to determine appropriate corrective measures, which may include orders to cease certain conduct and actions or to do certain things such as executing contracts. Article 79 of the LORCPM specifically provides that the SCPM may order undertakings to divest or order their breakup in cases in which it considers this the only way to restore competition.
Fines are limited by the percentages of turnover established in Articles 78 and 79 of the LORCPM, and are calculated considering the criteria set forth in Article 80 of the LORCPM.
Article 80 of the LORCPM lists the following criteria:
- The dimension and characteristics of the affected market.
- The market share of the responsible undertakings.
- The reach of the offence.
- The duration of the offence.
- The effect of the offence …
- The benefits obtained …
- The aggravating and mitigating circumstances …
The LORCPM Regulation contains additional guidelines on the calculation of fines (Articles 95 to 104). The SCPM has also issued further secondary guidance setting forth the methodology to calculate fines for violations of the LORCPM, including the formulas to be applied.
The LORCPM and its Regulation set the maximum limits of the fines at 10% and 12% (‘serious’ and ‘very serious’ violations, respectively) of the turnover of the undertaking calculated on the basis of the last available financial statements. This turnover is not limited to the specific relevant market in which the violation occurred. The applicable methodology does acknowledge the relevance of the turnover within the concrete relevant market for the calculations.
Ecuador
Answer ... The SCPM can impose remedies (corrective measures) and fines directly. If a decision of the SCPM is final – meaning that challenges (within the SCPM or judicial) have not been brought forth within the timeframe mandated by law – the SCPM may compel compliance with the aid of a judge and any other governmental authorities. However, the undertaking may challenge a decision within the SCPM and may also judicially challenge the decision. The undertaking need not have exhausted administrative recourses to judicially challenge a decision of the SCPM.
A judicial (or administrative) challenge does not suspend the application of the decision (ie, enforcement of remedies and fines). Pursuant to Article 69 of the LORCPM, payment of the fine may be suspended pending a judicial decision if the undertaking issues a guarantee equivalent to 50% of the respective fine through an insurance policy or a bank guarantee.