This is because this resolution surprisingly reversed the decision of the Court for the Defense of Free Competition (TDLC), which had accepted the exception of extinctive prescription raised by the requested companies and executives, thus rejecting the request of the National Economic Prosecutor’s Office (FNE).
The core of the discrepancy between both instances lies in the interpretation of Article 20 of Decree Law No. 211, regarding the computation of the five-year statute of limitations period.
The TDLC considered that CONAF’s bids during the 2014-2015 and 2015-2016 seasons should be analyzed separately, determining that the effects of the agreement ceased with the awarding of the second bid, on December 10, 2014. Consequently, since the claim was filed on August 19, 2020, the statute of limitations period provided for in the regulation would have elapsed, considering also the provisions of Law No. 21,226, in force on the latter date.
On the contrary, the Supreme Court adopted a comprehensive view and considered that both bidding processes were part of a single collusive agreement, with the common objective of controlling the awards and prices in the bids for forest firefighting services. Therefore, the statute of limitations should be analyzed on the basis of this unified approach.
Thus, it held that the effects of the agreement extended to the 2014-2015, 2015-2016 and 2016-2017 seasons, considering the agreement in force during the entire execution of the awarded contracts. Under this criterion, the FNE’s action was not time-barred.
This ruling confirms the Supreme Court’s tendency to apply a broad and substantive interpretation of collusive conduct, recognizing the continuing nature of the agreements and prioritizing the effective protection of free competition over formalistic or fragmented approaches.
However, it is worth questioning to what extent the expansive approach adopted by the Supreme Court could generate uncertainty among economic agents. The absence of uniformity and clarity regarding the criteria that will govern the computation of the statute of limitations in this type of cases opens the door to excessively broad interpretations, which threatens to affect legal certainty and the principle of certainty.
It should be remembered that we are dealing with sanctioning procedures that constitute a manifestation of the ius puniendi of the State, which raises the standard of demand in terms of the guarantees that must be safeguarded for those under investigation, with any ambiguity regarding the calculation of the statute of limitations being particularly serious.
Although the purpose of strengthening the effectiveness of the system for the defense of free competition is worthy of consideration, it is essential that the evolution of case law aims at consolidating a balance between the necessary flexibility for the prosecution of complex infringements and the safeguard of legal certainty, preventing the statute of limitations from becoming a factor of permanent indeterminacy for market operators.
Authors: Valentina Chinni and Claudio Lizana
