Argentine Court of Appeals dismisses medical oxygen companies’ appeal on statute of limitations grounds
On August 6, 2013, Courtroom III of the Court of Appeals on Federal Civil and Commercial matters dismissed the appeal filed by the medical oxygen providers Air Liquide Argentina S.A., Praxair Argentina S.A., and Indura Argentina S.A., which argued that the Court of Appeals’ prior affirming decision of an antitrust cartel fine was null and void since it was issued after the 5-year statute of limitations provided in Law No. 25,156 (the “Antitrust Law”) had long expired.
On July 15, 2005, the Secretary of Technical Coordination, based on the report prepared by the National Commission for the Defense of Competition (CNDC), issued Resolution No. 119/2005, by means of which it sanctioned Air Liquide Argentina S.A., Praxair Argentina S.A., AGA Argentina S.A., and Indura Argentina S.A. with a fine totaling AR$70.3 million (approximately US$12 million at the current exchange rate) for allegedly colluding their tender offers for the provision of medical oxygen to private and public hospitals between 1997 and 2002. Said resolution was appealed by the medical oxygen companies and was upheld by the Court of Appeals on August 10, 2012, this is, more than seven years after the fine was imposed. In its turn, the medical oxygen companies filed a new appeal against the affirming decision from the Court of Appeals, alleging that such decision was null and void since it infringed the 5-year statute of limitations set forth in the Antitrust Law.
The Court of Appeals held that the statute of limitations was solely applicable to the administrative stage of the investigation carried out by the antitrust authority, but not applicable to the Courts that review the administrative decision issued by the antitrust enforcement authority. Likewise, the Court of Appeals decided that the seven-year period it took to review the companies’ appeal to finally confirm the fine imposed by the antitrust authority, did not impair the companies’ due process right, including their right to obtain a fair and effective court decision in a reasonable period time without any undue delays.
At present, the Court of Appeals is analyzing whether to grant the Extraordinary Appeal filed by the medical oxygen companies, which if granted, will allow the case to be reviewed by the Supreme Court of Justice.
For further information on this topic please contact Julián Peña