Sustainability and Competition Global Practice Guide |
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Uruguay |
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| (Latin America/Caribbean) Firm Guyer & Regules Updated 06 Sep 2022 | |
| Are ESG measures/sustainability agreements included in your jurisdictional competition regime? | No. The legal interest protected under Law No.18,159 (“Antitrust Act”) is very clear and consists of the welfare of current and future consumers and users, through the promotion and defense of competition. Therefore, the antitrust agency’s analysis (“Agency”) should always be based on the "consumer welfare standard", i.e., consumer protection in the short term, and the "aggregate welfare standard" in the long term, without regard to unrelated environmental, employment or social planning standards. The application of this standard can be seen in practice where the Agency has excused itself from ruling on issues unrelated to antitrust and in particular to the Antitrust Act protected legal interest. In this regard, under Report No. 56/011 of August 16, 2011, the Agency understood that it is not a matter of antitrust law to ensure full employment and that "to demand otherwise would lead to conclusions as erroneous as they are absurd". |
| If ESG measures/sustainability agreements are not included in your jurisdictional competition regime, do you foresee any new regulations coming into place in 2022? | No. However, it should be noted that neighboring jurisdictions have begun to incorporate certain guidelines that may in the future potentially be adopted by the Uruguayan antitrust authority. In this sense, on May 2022, the Argentinian antitrust authority submitted for public consultation the draft amendment to the Guidelines for the Notification of Economic Concentrations established by Resolution No. 40/2001. Under said draft guidelines, the parties must “Indicate the benefits that the transaction has on aggregate variables such as employment generation, income, import substitution, investment, environmental protection, gender policies, among others” in relation to the benefits that the transaction may bring to the general economic interest, clearly introducing ESG matters to the analysis. |
| Has your Authority issued any guidance on the role, if any, of ESG in the competition law analysis applied to mergers or other conduct? | No. |
| Has your jurisdiction issued guidance regarding competitor collaborations or participating in industry working groups, and if so, do they specifically address ESG? | No. |
| Can parties seek specific guidance from authorities on proposed ESG initiatives? | The Antitrust Act allows parties to seek guidance from the antitrust authorities on any question regarding the applicability of the Antitrust Act. Therefore, it would be perfectly feasible for parties to seek guidance on any proposed ESG initiative that they suspect could in any way raise questions under the Antitrust Act. However, judging by the wording of the Antitrust Act, its legally protected interest and some isolated precedents (See "Are ESG measures/ sustainability agreements included in your jurisdictional competition regime?"), we believe that the Agency would be quite reluctant to grant exceptions to the applicability of the Antitrust Act for ESG purposes, absent any specific legislation enforced to that effect in the future. |
| How, if at all, does your jurisdiction quantify or calculate the ESG effects? | Not applicable. |
| What does your legal authority currently permit even if your agency is not yet active on this topic? | We do not have sufficient precedents to answer this question but judging by the wording of the Antitrust Act, its legally protected interest and some isolated precedents (See our response to "Are ESG measures/sustainability agreements included in your jurisdictional competition regime?"), we believe that the Agency would be quite reluctant to grant exceptions to the applicability of the Antitrust Act for ESG purposes, absent any specific legislation enforced to that effect in the future. |
| Are there precedents that involved ESG/sustainability matters in your country? If so please provide a short description. | No. On the contrary, as indicated in our response to "Are ESG measures/sustainability agreements included in your jurisdictional competition regime?", when the parties have tried to introduce ESG elements to the analysis, the Agency has argued that the subject matter is outside the scope of the Antitrust Act and its protected legal interest. |
| Is there specific antitrust regulation in your jurisdiction to be aware of which might give rise to private or class action ESG litigation? | No. |
Sustainability and Competition Global Practice Guide
No. The legal interest protected under Law No.18,159 (“Antitrust Act”) is very clear and consists of the welfare of current and future consumers and users, through the promotion and defense of competition. Therefore, the antitrust agency’s analysis (“Agency”) should always be based on the "consumer welfare standard", i.e., consumer protection in the short term, and the "aggregate welfare standard" in the long term, without regard to unrelated environmental, employment or social planning standards.
The application of this standard can be seen in practice where the Agency has excused itself from ruling on issues unrelated to antitrust and in particular to the Antitrust Act protected legal interest. In this regard, under Report No. 56/011 of August 16, 2011, the Agency understood that it is not a matter of antitrust law to ensure full employment and that "to demand otherwise would lead to conclusions as erroneous as they are absurd".
No. However, it should be noted that neighboring jurisdictions have begun to incorporate certain guidelines that may in the future potentially be adopted by the Uruguayan antitrust authority. In this sense, on May 2022, the Argentinian antitrust authority submitted for public consultation the draft amendment to the Guidelines for the Notification of Economic Concentrations established by Resolution No. 40/2001. Under said draft guidelines, the parties must “Indicate the benefits that the transaction has on aggregate variables such as employment generation, income, import substitution, investment, environmental protection, gender policies, among others” in relation to the benefits that the transaction may bring to the general economic interest, clearly introducing ESG matters to the analysis.
No.
No.
The Antitrust Act allows parties to seek guidance from the antitrust authorities on any question regarding the applicability of the Antitrust Act. Therefore, it would be perfectly feasible for parties to seek guidance on any proposed ESG initiative that they suspect could in any way raise questions under the Antitrust Act. However, judging by the wording of the Antitrust Act, its legally protected interest and some isolated precedents (See "Are ESG measures/ sustainability agreements included in your jurisdictional competition regime?"), we believe that the Agency would be quite reluctant to grant exceptions to the applicability of the Antitrust Act for ESG purposes, absent any specific legislation enforced to that effect in the future.
Not applicable.
We do not have sufficient precedents to answer this question but judging by the wording of the Antitrust Act, its legally protected interest and some isolated precedents (See our response to "Are ESG measures/sustainability agreements included in your jurisdictional competition regime?"), we believe that the Agency would be quite reluctant to grant exceptions to the applicability of the Antitrust Act for ESG purposes, absent any specific legislation enforced to that effect in the future.
No. On the contrary, as indicated in our response to "Are ESG measures/sustainability agreements included in your jurisdictional competition regime?", when the parties have tried to introduce ESG elements to the analysis, the Agency has argued that the subject matter is outside the scope of the Antitrust Act and its protected legal interest.
No.