3. Anticompetitive Conducts and Concentrations (article 279 of the EUCAAA)
Agreements/Cartels: Currently, article 130 of the Constitution establishes the following:
"Monopolies and privileges are prohibited. The State shall limit the operation of companies that
absorb or tend to absorb, to the detriment of the national economy, the production in one or
more industrial branches or of the same commercial or agricultural activity. The laws shall
determine what relates to this matter. The State shall protect the market economy and shall
prevent associations which tend to restrict the freedom of the market or to the detriment of
consumers." The Criminal Code in Article 340 establishes the crime of monopoly 25 in
connection to this constitutional norm and imposes a punishment of jail from 6 months to 5
years and a fine of GTQ 500.00 to GTQ 10,000.00.
26 This Article is not modified by the
Competition Bill.
The Competition Bill regulates cartels or agreements as “absolute monopolistic practices”. The
Bill regulates only 4 types of agreements27 which are the practices identified in international
doctrine as Hardcore Cartels: 1) Price Fixing; 2) Division of markets; 3) Restriction of Output.
28 These types of anticompetitive conducts are declared as absolutely void and thus, the
Competition Bill uses the per se rule to assess these practices. Infringement of absolute
monopolistic practices will be punished with a maximum fine of 200,000 minimum nonagricultural daily salaries. 29 A minimum, however, is not established. 30
The Competition Bill also includes a new article in the Criminal Code (article 450 A) “Collusive
Practices”, but it only refers to collusive tenders. This article states that offerors, bidders, or
participants in public bids who collude or coordinate their offers or agree to refrain from
presenting offers or participate in such processes, will be punished with 1 to 6 years of prison
and a fine of up to 10% of the “offer presented at the public bid”. 31 However, it is not clear as
to which “offer presented at the public bid” will be the parameter to impose the economic fine.
This does not create certainty, which is vital in criminal law. Moreover, the Competition Bill
adds that those who benefited from this collusion, will be removed from the National Register
23 Economic Commission for Latin America and the Caribbean, United Nations, General Conditions of Competition in
Guatemala, 2006, p. 9. 24 Idem. 25 Article 340 of the Criminal Code establishes: “Whoever, who with illicit purposes, performs acts with obvious damage
to the national economy, by absorbing the production of one or more industrial branches, or of the same commercial
or agricultural activity, or whoever takes exclusive advantage thereof through any privilege, or using any other means,
or whoever executes maneuvers or agreements, even if these are disguised with the incorporation of several
companies, to sell goods at certain prices to the obvious detriment of the national economy or of individuals, shall be
punished with imprisonment from 6 months to 5 years and a fine of five hundred to ten thousand quetzals.” The
underlined text does not come from the original.
26 Approximately USD$65.00 to USD 1,400.00 based an exchange rate of GTQ 1= $0,13. 27 Article 5, Competition Law, Bill Nr. 5074. 28 Organization for Economic Co-operation and Development, Reports, Hardcore Cartels, 2000, p 11. 29 In 2022, the minimum non-agricultural daily salary is of GTQ 97.29, approximately USD$748. Therefore, the
maximum fine for this anticompetitive practice is of approximately USD$2,500,000.00 (based on an exchange rate of
with an exchange rate of GTQ 1 = USD$0.13). 30 Article 117, Competition Law, Bill Nr. 5074. 31 Article 132, Competition Law, Bill Nr. 5074.
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of Public Purchases and that these sanctions are without prejudice of those established by the
competition law. Consortiums that present a common bid are exempted from this norm.
The Competition Bill reforms article 341 of the Criminal Code in a substantial manner.
Currently, this article penalizes 5 forms of “other forms of monopoly” that complement the
crime of monopoly regulated by article 340, as explained above. Today, this article 341
indicates that the following acts are against the public economy and public interest: 1)
Hoarding or subtraction of essential items, with the purpose of causing a rise in prices in the
domestic market. 2) Any act or process executed to prevent or that intends the prevention of
free competition in production processes or in trade. 3) Agreements or pacts entered without
prior government authorization, aimed to limit the production of any item, with the purpose of
establishing or holding privileges and to profit from them. 4) The sale of goods of any nature,
below the production price, to prevent free competition in the internal market. 5) The export
of items of first necessity without permission from the competent authority, when required, if
this may cause shortages or scarcity. Those responsible will be punished with imprisonment
from six months to three years and a fine of two hundred to five thousand Quetzals. 32 The
Competition Bill proposes to modify this article 341 by eliminating section 2,3, and 4 and
keeping only sections 1 and 5 related to hoarding and export of items of first necessity.
Punishment thereto remains the same.
Abuse of Market Power: The Competition Bill introduces the relative monopolistic
practices as those agreements, conducts, contracts, covenants, decisions or practices of one
or more economic agents that individually or jointly have a dominant position in the same
relevant market, with the purpose or effects in the relevant market or in a related market of
unduly exclude or displace its competition, or to substantially prevent their access thereto o to
grant exclusive advantages to one or several economic agents. It is worth pointing out that Bill
proposes not only to take into account the relevant market but also, “related markets”. This
could create an issue with the enforcement considering that this is not common in competition
law and tools or tests to determine these would also need to be developed since effects are
usually measured in the relevant market. The Bill describes 15 practices among which are,
imposition of prices, conditions, discrimination, margin squeezing and predatory pricing. The
law also includes as an anticompetitive practice the use of profits received from a sale of goods
or provision of services by an economic agent in order to finance the losses from the sales of
another good o service, either in the relevant market or in a related market. Another practice
is to unreasonable refuse the access or entry of an economic agent to a guild or professional
association or business chamber, that is essential to effectively participate in the market.
33
These practices will be an infringement to the competition law if: 1) the economic agents have
a dominant position in the relevant market; 2) the conducts are performed in connection to
goods or services related to the relevant market; 3) that the conducts have exclusion effects in
the relevant market or in related markets. It also adds that the practices will be anticompetitive
if the Superintendency proves that the practices generate a detriment in the efficiency of
markets that distort the process of free competition and produce anticompetitive effects that
have an impact on consumer welfare, market supply and availability of products. These last
paragraphs could seem redundant and confusing. 34 The Law allows practices that aim to
establish cooperation in research of new technologies or are acts stemming from international
32 Approximately, USD$25 to USD$650 (based on an exchange rate of with an exchange rate of GTQ 1 = USD$0.13). 33 Article 7, Competition Law, Bill Nr. 5074. 34 Article 8, Competition Law, Bill Nr. 5074.
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treaties approved by Congress, or are temporary to comply with public policies, natural
emergencies, or protection of vulnerable groups. Conducts executed by Agriculture
Cooperatives35 The Superintendency my approve such practices based on technical and legal
criteria. 36 Infringement of relative monopolistic practices will be punished with a maximum
fine of 100,000 minimum non-agricultural daily salary. 37 A minimum however, is not
established.
It is worthwhile noting that, anyone who files a claim against allegedly anticompetitive conducts
that is evidently false or frivolous, could be fined with 200,000 minimum non-agricultural daily
salary.
Concentrations: Currently, there is no obligation to notify and request approval of
concentrations. The Competition Bill in Article 16 establishes that notification is mandatory and
must be done pre-merger if the economic thresholds are met, which are already included in
the law and are mainly related to combination of assets (exceeding 7,000 the minimum daily
salary for non-agricultural activities) and the combination of income.
