.
Public companies or companies holding special or exclusive rights,
including designated monopolies (Article 280 EUCAAA).
Railroads: Ferrocarriles de Guatemala (FEGUA) is mandated by law to provide public
railroad transportation services, auxiliary services, wharfage and other operations; FEGUA in
turn owns 80% of the shares of Ferrovías de Guatemala, S.A., an entity created with mixed
capital to generate projects to reactivate the country's railroad network. Ferrovías is the sole
usufructuary of the country's railroad utility assets. It has the rights to operate more than 800
kilometers of railroad corridors in the country. At present, the Congress of the Republic of
Guatemala is discussing new contracts for the granting of operating licenses for railroad
sections, which have not been considered to be adequately transparent.
Sugar: The sugar industry exhibits a high degree of vertical integration from the cultivation
and processing of sugarcane to the distribution of sugar. ASAZGUA is confirmed by 16 existing
sugar mills in the country and works in coordination with the sugar trading companies, in
charge of sugar export shipments, and with CENGICAÑA. ASAZGUA is a private entity
separate from the public sector that, due to lack of regulations, has been able to include in
their bylaws, that they will have the autonomy to regulate prices as well as establish quotas of
participations among their associates. The freedom to set their prices, and in relation to studies
that indicate that the profitability of sugar worldwide shows low levels, allows ASAZGUA to
compensate said drop with profitability in the local market and by limiting the participation of
foreign or national actors who wish to import sugar by setting high tariff rates and limited
import quotas.38
Poultry: The country's poultry industry represents 11.3% of the total production of the
agricultural sector, only behind coffee and sugar. There is a high degree of vertical integration
that covers the entire production cycle, and the market is monopolized by 2 companies that
35 Article 8, Competition Law,
Bill Nr. 5074. 36 Article 9.6), Competition Law, Bill Nr. 5074. 37 In 2022, the minimum non-agricultural daily salary is of GTQ 97.29. Therefore, the fine for this anticompetitive
practice is of USD$1,250,000 (based on an exchange rate of with an exchange rate of GTQ 1 = USD$0.13). 38 Superintendency of Banks, Guatemala, Department of Macroprudential Regulation and Supervision of Standards,
The Sugar Market, 2016.
TA to Support the Implementation of the Trade Pillar of the EU-CA Association Agreement
Legal review of the Central American Competition framework
23
control about 75% of the total industry. This sector still has 2 years left of protection, since by
2024 a total liberalization of trade tariffs must take place according to the CAFTA-DR.
Alcohol: The Law on Alcohol, Alcoholic and Fermented Beverages in Guatemala dates to
1948. Its main regulations fundamentally refer to technical specifications in the production
processes and, in theory it pursues free competition in this market, however, the law includes
restrictions and prohibitions that hinder competition, such as establishing that manufacturers
cannot produce more than 33% of the national production. The production of alcoholic
beverages presents a classic picture of oligopoly in the country, the activity is carried out by
four companies that are part of the same economic group. Said companies are organized
under ANFAL, whose main objective,
per their bylaws, is to seek fair prices for the products
and their proper unification. The limitation of competition is observed with the existence of a
tariff of 40% and 30% for the importation of rum and other liquors, respectively. ANFAL thus
imposes product prices, has the decision power to “endorse” companies that want to enter the
rum production market and related alcohol products and also establish the tariffs for the import
of related products.
Other markets that under control of entities with special rights are Beer, Cement, Fertilizers,
and Television.
5. Public Procurement and Distribution of Pharmaceutical Products
Public Procurement: According to the International Commission against Impunity in
Guatemala (ICIG), Guatemala has seen many and serious cases of corruption when it comes to
public procurement which extends to the whole public system and from the central
government to municipalities. 39 According to the ICIG, and based on the information
gathered, it could be concluded that public works and purchases seek the private benefit
before addressing the needs of the people40 and that there has been a process to learn how
to avoid the public procurement law, how to establish bogus companies, comply with formal
requirements and hide ill-gotten money 41 . The Information System of Contracting and
Procurement of the State of Guatemala (GUATECOMPRAS), which operates through the
platform www.guatecompras.gt, is a system made to ensure transparency, certainty, efficiency,
and competition at public procurement processes. It is a public database, unrestricted and
free, and must be used by all regulated entities (public or private entities that manage public
funds) for purchases, sales, contracts, leases or any other form of acquisition. If properly
maintained and used, GUATECOMPRAS could help prevent corruption and provide officials,
journalists, and other sectors of society in general with an effective means to monitor state
contracts and contracting mechanisms. However, GUATECOMPRAS currently fails to fulfill its
purpose of generating transparency to a large extent. The failure of GUATECOMPRAS does
not aid in solving the serious problem of public purchases when considering the enormous
amount of money at stake, which can be a source not only of large profits, but also of political
influence for the companies that access this market.
Distribution of Pharmaceutical Products: The Trade-Related Aspects of Intellectual
Property Rights -TRIPS- grants patent protection for products and processes for 20 years,
likewise Guatemala allows the patenting of products and processes for 20 years according to
39 International Commission against Impunity in Guatemala, United Nations, Thematic Report, Guatemala: A Captured
State. 40 Idem, p. 8. 41 Idem, p. 100
TA to Support the Implementation of the Trade Pillar of the EU-CA Association Agreement
Legal review of the Central American Competition framework
24
the provisions of the Industrial Property Law (Decree Number 57-2000). More than 600
pharmaceutical products and processes are patented in Guatemala. Guatemalan regulations
related to intellectual property have been a contentious legislative issue. One of the problems
is the approval and the rules on "test data exclusivity" have also been modified many times.
While the Guatemalan Congress established test data exclusivity for a period of fifteen years
for each patented drug, after the approval of the Free Trade Agreement between the United
States of America, Central America and the Dominican Republic (DR-CAFTA) in 2005, the
exclusivity was modified to a term of five years. Through this norm, the protection obtains a
five-year term and a new type of "administrative monopoly" is established, even when the
patent has expired,
since this protection has an adverse effect on "generic" drugs, normally of
a more accessible cost for the general population, since they cannot be registered in the
country because they cannot use the information on efficacy and safety provided to the
Department of Regulation and Control of Pharmaceutical Products by large laboratories or
those with recognized brands.
To import into the country, pharmaceutical companies must demonstrate to the Department
of Regulation and Control of Pharmaceuticals that their drugs are proven safe and effective
through clinical studies and various trials. In contrast, producers of generic drugs must
demonstrate bioequivalence to brand-name drugs, show that they work in the same way.
Normally, generic drug manufacturers prove safety and efficacy by referring to the results of
clinical trials already produced by the equivalent brand-name drugs. However, in Guatemala,
generic companies are prohibited from using or referring to data from the "author's clinical
trials" of the drugs during the period of time in which they are protected (five years). Another
mechanism that negatively affects the competition of "generic"
drugs in practical terms is the
suspension of an application for registration (or sanitary license) as a precautionary measure
under a judicial action to protect the intellectual property of a drug. This can happen because
a system is in place whereby the patent office (Intellectual Property Registry) and the sanitary
registration office (Ministry of Health) work in direct contact with each other and with the patent
holders. This means that, if a company wants to apply for registration of the generic version of
a drug, the national offices are obliged to inform the holders of a patent and the corresponding
test data about the initiated procedure. Finally, another mechanism that may affect the
freedom of competition in the pharmaceutical sector in Guatemala are border measures.
These measures regulate customs authorities to prevent the entry of a generic drug into the
national market if the drug enjoys legal protection in Guatemala.42
