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Superintendencia de Competencia
Competencia

Las multas impuestas por la SC y su ejecución

Por Gerardo Daniel Henríquez Angulo*

ANTECEDENTES

El ius puniendi del Estado es concebido como la capacidad de ejercer un control social coercitivo ante lo constituido como ilícito y, entre otros, se manifiesta en la actuación de la Administración Pública al imponer sanciones por el cometimiento de conductas calificadas como infracciones por el ordenamiento jurídico. Dicha función administrativa desarrollada en aplicación del ius puniendi, se conoce técnicamente como potestades sancionadoras de la Administración.

Para poner en contexto lo anterior, la Superintendencia de Competencia, como ente administrativo, luego de tramitar un procedimiento administrativo sancionador por práctica anticompetitivas u otras infracciones a la Ley de Competencia (artículos 25, 26, 30 y 38), concluye el mismo al emitir resolución final en la que, de comprobarse la infracción, impone sanciones, en algunas ocasiones conductuales, pero en su mayoría pecuniarias, es decir, multas.

El agente económico que ha sido afectado con la imposición de la multa puede interponer recurso de revisión; resuelto éste, la resolución adquiere estado de firmeza, de no hacerlo (recurrir), y transcurrido el plazo para presentarlo, la resolución, igualmente, adquiere estado de firmeza.

PROCEDIMIENTO EN LA SUPERINTENDENCIA DE COMPETENCIA

Una vez notificada la resolución final que impone multa, sin haber sido recurrida o habiendo resuelto el recurso de revisión, inician las diligencias de ejecución de la decisión referida, para lo cual el agente económico multado, después de haberse notificado, tiene el plazo de ocho días para realizar el pago de la multa[ Art. 73 Reglamento de la Ley de Competencia.]. Efectuado el pago, el recibo de ingreso emitido por la Dirección General de Tesorería del Ministerio de Hacienda deberá ser presentado a la Superintendencia de Competencia en el término de tres días.

En el caso de que el agente económico no presente el comprobante de pago de la multa impuesta en el término prescrito, la Superintendencia de Competencia tiene la obligación legal de remitir la información pertinente (certificación de la resolución final, constancia de no pago, entre otros) a la Fiscalía General de la República, para que inicie las acciones correspondientes, con el objeto de que los pagos respectivos se hagan efectivos por la vía de ejecución[ Art. 74 Reglamento de la Ley de Competencia.].

A la fecha, la Superintendencia de Competencia ha impuesto 63 multas por la cantidad de $9,436,040.01, de las cuales se han cancelado $2,953,010.70, quedando pendientes $6,483,029.31. En su mayoría las multas pagadas han sido por actuaciones en sede fiscal.

Es importante mencionar que las multas impuestas obedecen a un 87% en el caso de prácticas anticompetitivas y 13% en el caso de otras infracciones (ver grafico), siendo las más relevantes impuestas en los sectores de derivados del petróleo, harinas y azucarero.

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PROCEDIMIENTO EN LA FISCALÍA GENERAL DE LA REPÚBLICA

Con la información proporcionada por la Superintendencia de Competencia, la Fiscalía General de la República inicia, en un primer momento, una acción administrativa de cobro, que principalmente tiene por objeto cobrar la multa en una fase de carácter administrativa, previo a presentar una demanda en sede judicial, tal como ha ocurrido con el pago de agentes económicos que han sido multados en los sectores farmacéutico y eléctrico, en el que realizaron el pago de las multas mediante cuotas acordadas en sede fiscal.

En caso de no tener resultados el cobro por la vía administrativa, la Fiscalía General de la República presenta demanda ante los tribunales respectivos, solicitando por la vía ordinaria el cobro de las multas.

No obstante lo anterior, existen casos en los que en el transcurso de las diligencias de ejecución de la resolución final, los agentes económicos afectados por las multas, en la mayoría de los casos, presentan demanda en proceso contencioso administrativo o en proceso de amparo ante la Sala de lo Contencioso Administrativa o Constitucional de la Corte Suprema de Justicia, respectivamente.

Cuando los actos han sido impugnados en esa sede judicial, las Salas mencionadas, pueden decretar, a petición de la parte actora, la suspensión de los efectos del acto administrativo impugnado, es decir, para el caso, otorgan medida cautelar y suspenden provisionalmente el cobro de la multa impuesta, para lo cual, tanto la Superintendencia de Competencia como la Fiscalía General de la República suspenden sus procedimientos de cobro y se queda a la espera de la sentencia respectiva o en su defecto del levantamiento de la medida cautelar impuesta.

Vale aclarar que la suspensión del pago de la multa, según datos que lleva la Superintendencia de Competencia se realiza en el 50% de los casos que tramita, lo que impide en gran medida, realizar los cobros de las multas impuestas.

 

*Abogado- Coordinador del Área de litigios jurisdiccionales de la Intendencia de Investigaciones de la Superintendencia de Competencia.

– Los comentarios en este artículo expresan la opinión del autor –

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