In the midst of these processes, among the challenges choose the Board of Directors, form the Superintendency and to apply the law, opinions that they consider necessary to reform the current law, but only to eliminate gaps, rectify provisions, in addition to creating an adequate regulation for its implementation and lists a series of challenges, according to participants in the forums of the American Guatemalan Chamber of Commerce (AMCHAM) about “Competition Law of nomination and challenges for its implementation. “
According to the entity, three messages that consider keys were announced:
- One refers to the correct formation of the first directory and the maintenance of a transparent nomination process are fundamental, since it will mark the institutional nature and independence of the new superintendence in its first years of operation.
- The second message refers to the fact that a need for reforms to the Competition Law was detected, but these must be punctual, technical and limited “to solve antinomies or legal gaps that hinder its implementation” and consider that the substantive changes must be reserved for a later and more mature stage of the competition ecosystem.
- The third point, refers that the collaboration between government, companies and civil society is essential to build an ecosystem of dynamic competition, based on trust, the development of capacities of private and public actors, and constant dialogue, adds the entity.
They detect at least six challenges
At least six 6 challenges hold for the election of the Board of Directors, conformation of the Superintendence of Competition and the implementation of the Law.
Enrique Moller, president of the Fiscal Committee of Amcham Guatemala explained that to form the directory and the technical entity so two issues must be separated, “the duty to be and reality.”
Therefore, it is important that there are currently many institutions and people who clearly indicate the issues and should be learned from the experiences of other countries, since it is expected to develop well in reality.
Moller said that he observes that the nominators who are most advanced are the JM and the Congress, but there is a more dissemination by the Mineco about the process they are in charge for the appointment by the President of the Republic.
Moller mentions three important challenges. One of these resolving the antinomies or defect of the law that is in the background, but are rectifiable with relative ease, considers that only defects should be corrected without changing the background of the law, so it will be a challenge in Congress.
One of the antinomials is that in article 31 of the Law it is established that the Board of Directors is formed by three regular directors, but in another article there is talk of the Quorum and that the majority in the Board of Directors is five members, which was the number in one of the proposals of the law, then it could be interpreted that two substitutes will have to be integrated to do quorum, but it is better to clarify it in the law, he said.
Subscriber content
The second point is the challenge of forming the administrative entity, the Superintendence of Competition, but especially the regulation because it will help to operationalize the law. And, at its discretion, the third point is education, since in the end it is the subject of culture of companies, since in ETAS its compliance area must be established where directors, executives, boards of directors of the companies must be part of that culture and know the anti -competitive practices, mainly the so -called absolute, which can affect, even to companies that are not dominant in the market, which are not large but that they can not fall into those practices.
A deeper issue is that of the supplementary of the law. This should be clear because it generates concern about how many litigation or situations will be generated by the fact that it is interpreted that a case must be resolved by the Competition Law or the specific laws of sectors that are regulated by their own laws such as telecommunications, banking, electricity finance and others. That is, the way in which the applicability of the law with a little more clarity would be determined should be determined.
The other important point clarify is the definition of the relevant market which has a geographical scope, but it also has an area of the type of product from which it is being discussed and the possibility that the consumer has of replacing that product with another equivalent, the need that covers, the price at which it obtains it and the place or the ease with which the product can be obtained. “It is a really sophisticated issue of an economic and market analysis that is based a lot on statistics, information, numbers and data that must be collected, but in Guatemala, we do not characterize ourselves for having all the data and the information per day that is going to be needed to make those measurements.”
Cáceres mentioned that among the main challenges are that the three nominating entities select the ideal people so that they can form the directory, and then the formation of the administrative structure of the Superintendency. “Let us remember that they are starting from scratch and have absolutely nothing more than the Board of Directors.”
Cáceres adds that an important contradiction must also be resolved with respect to who must be the first president of the Board of Directors. An article establishes that first president will be the one of those nominated by the Congress of the Republic and in another article he says that he will be the oldest person. It is likely to be perfected and definitely in the course of time they will be corrected the errors that there may be so much administrative or process, added the manager of the Banguat.
Catalina González, executive of the Firm of Lawyers, explained that the professional capacity, the training approach is important, in the technical part is vital and the resources will be limited, and it must be taken into account that the issue of concentrations in the law was open for economic agents, and in certain cases they will have to go to the superintendence of competence to make some acquisition. “That means that resources will be limited and there will be an important funnel in the Superintendency because then all the acquisitions, not only between competitors but any acquisition of a union that will acquire any business that is not within its competition will get into this funnel.”
Apart from the Superintendency team there will be an administrative contentious court, and you should think who is going to train this personnel with technical capacities of economic knowledge to be able to define, not in an ideological way but in a supported way that a case applies or does not apply, so, it indicates it is necessary to strengthen an ecosystem that derives from the Competition Law.
The deputies Faver Salazar, and Felipe Barrera, president and secretary of the Congress Economy Commission, as well as Ayleen Rodríguez of the Advisory Council of Amcham and Enrique Godoy, who was moderator, also participated in the forums.
Evaluation processes: In May, candidates will be evaluated
The Monetary Board plans to make known on Friday, May 2, the names of the applicants who pass to the second phase, of the 32 files they received. Meanwhile, on May 5, psychometric tests will be carried out and on Friday 9 the knowledge evaluation indicated Vinicio Cáceres, general manager of the Bank of Guatemala (Banguat). The activity will be carried out in the building of said banking entity.
For the evaluation, the JM hired the Monterrey Institute for this evaluation.
Subscriber content
Meanwhile, the Ministry of Economy reported in a bulletin that for the evaluations hired the University Finis Terrae, of Chile due to its prestige in economics and free competition. 21 candidates participate in this process who will evaluate their merits to lead the superintendence of competition. The evaluations will be carried out on May 5, 6 and 7 at the Technical Institute of Training and Productivity (Intecap) of Zone 5, and will consist of an opposition exam and an analysis of its academic career, professional experience and commitment to the principles of competition, adds the Mineco.
Meanwhile, the Congress of the Republic, through the Economy Commission, must still end the contracting process of the entity chosen as Pontifical Catholic University of Chile, to carry out the technical evaluation, explained the current president of said commission.
This agency received 38 files, of which 36 passed the first phase of review.