Payment facilities and exceptional payment plan – IRS

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Regulations NAC-DGERCGC20-00000043 and NAC-DGERCGC20-00000044 issued on June 23, 2020 by the General Director of the Internal Revenue Service, the rules for applying the Second and Third Transitory Provisions of the Law for Humanitarian Support to Combat the Health Crisis arising from COVID-19 were established.

The Second Transitory Provision of said law and Regulation NAC-DGERCGC20-00000043 establish that those taxpayers that applied the tax amnesty provided in the Law for the Promotion of Production, and that from January 2020 to June 22, 2020 have not paid 2 or more installments of their payment facility plan, may cover the amount owed until September 30, 2020 without surcharges, interest or fines.

Furthermore, the Third Transitory Provision of said law and Regulation NAC-DGERCGC20-00000044 establish that those taxpayers that applied the exceptional payment plan provided for in the Law on Tax Simplification and Progressivity, and that as of June 22, 2020 have not paid any of their installments, may cover the amount owed in 12 equal monthly installments, which must be paid on the 28th of each month, beginning July 28, 2020, without surcharges, interest or fines.

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DISCLAIMER: The preceding text has been prepared for general information purposes only. CorralRosales is not responsible for any loss or damage caused as a result of having acted or stopped acting based on the information contained in this document. Any given situation requires the specific opinion and view of the firm in Quito / Guayaquil, Ecuador.

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Resumption of terms – IRS

resumption-of-terms-irs-tax-lawyers-ecuador

The Internal Revenue Service, through Regulation NAC-DGERCGC20-00000022, suspended the terms and deadlines in all administrative processes and the statute of limitations for collecting debts from March 16 to March 31, 2020. The suspension was extended until June 15, 2020 by regulation NAC-DGERCGC20-00000038.

By Regulation NAC-DGERCGC20-00000042, issued by the Director General of the Internal Revenue Service on June 16, 2020, the terms and deadlines in all administrative processes and the statute of limitations for collecting debts have been resumed, with the following exceptions:

  1. The terms and deadlines of administrative processes and the statute of limitations for collecting debts that are being attended in administrative units of the Internal Revenue Service located that are located in cities classified under “red light” remain suspended. These terms and deadlines will resume once the Emergency Operations Committee classifies the cities under “yellow or green lights”.
  2. In Quito Metropolitan District, the terms and deadlines of administrative processes and the statute of limitations for collecting debts will resume once the government institutions resume their work on-site. When this bulletin was issued, the day on which the on-site work is expected to resume is June 22, 2020.

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Reinstatement of administrative procedures at the Ministry of Labor

administrative-procedures-reinstatement-ministry-labor

The Ministry of Labor (“MdT”) through Resolution No. MDT-2020-024 dated June 10th, decided to resume as of June 15, 2020, the hearings, terms, deadlines, and prescriptions that were suspended, within the following procedures:

  • “Visto Bueno” (employment termination with cause);
  • Administrative proceedings;
  • Administrative appeals;
  • Collection actions; and,
  • Other administrative procedures followed at any MdT unit.

Complaints submitted under the emergent procedure during the state of emergency will continue the on-line procedure until its completion.

Deadlines and terms of the administrative procedures for those county for which the restrictions continue to be under red light will be resumed when the restrictions change to yellow light, in accordance with the provisions issued by the county Emergency Operations Committee.

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Aula Magna – Does Covid-19 pandemic constitute force majeure that justifies the termination of individual employment contract?

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DETAILS

DATE: 03-06-2020

CORRALROSALES IN THE NEWS: 

-Alisson Vera

MEDIA: Aula Magna

Coronavirus or Covid-19 pandemic shocked the world. All countries are reacting with various measures to mitigate the multiple consequences being generated in all scopes.

After health concerns, the economic impact is a great concern, since in addition to the closing of companies and the consequent fall in the economy, the loss of jobs will condemn a significant part of the workforce to unemployment.

The International Labor Organization ILO, in its publication “COVID-19 and the world of work: Implications and Responses[1]”, provided a preliminary assessment of the possible impact of Covid-19 on the world of work and proposed a set of measures to mitigate these repercussions. There is no doubt that this situation affects workers and employers worldwide, since there are sectors in which there is no production nor incomes, but they still have expenses (rent, suppliers, payroll, social security, etc.). Therefore, dialogue is the best tool to achieve an agreement.

On March 16, 2020, the State of Exception was decreed in Ecuador to mitigate the spread of Covid-19. Among other measures, the closing of certain sectors and social isolation were ordered. Priority and strategic industries such as health, food, basic services, telecommunications, among others are the only ones authorized to provide services in person.

Due to this situation, the Ministry of Labor, in order to comply with the restrictions ordered by the authority and maintain jobs in the country, has issued several agreements that encouraged companies to implement, to the extend possible: emergency teleworking, modifying workday, establishing vacation time, implementing the temporary suspension of work, and has even opened the possibility for employers and workers to reach agreements, taking into consideration the economic situation of the company, as long as their labor rights are not infringed.

Despite the efforts of the labor authorities, it is not possible to apply temporary measures to maintain employment contracts in all scenarios, and there are cases in which employers find it necessary to terminate employment contracts due to the effects of the Covid-19.

In this regard, section 6 of article 169 of the Labor Code, which contains the grounds for terminating the employment relationship, provides:

“Art. 169.- Causes for the termination of the individual contract.- The individual employment contract ends:… 6) By unforeseen circumstances or force majeure that makes the work impossible, such as fire, earthquake, storm, explosion, plagues of the field, war and, in general, any other extraordinary event that the contractors could not foresee or that they anticipated, they could not avoid;… (I did the underlining.) ”

Despite the fact that, on a doctrinal level, there is a difference between unforeseen circumstances and force majeure, since the term “unforeseen circumstances” should be reserved for the acts of nature, while “force majeure” refers to the events caused by man, most legal and treaty systems agree that the effects are the same. Ecuadorian regulations do not distinguish between those two[2]. Thus, the definition of force majeure is the same as that of unforeseen circumstances and is contemplated in article 30 of the Civil Code that establishes: “(…) It is called force majeure or unforeseen circumstances, the unforeseen event that it is not possible to resist.” Its effect is the exoneration of the debtor’s responsibilities[3].

Therefore, it is important to identify the fact that constitutes force majeure, since based on this, the analysis of the effects it may have on the employment relationship will be carried out. On the other hand, for force majeure to apply, as an exemption from labor responsibility, the doctrine and jurisprudence[4] establish that the following elements are necessary:

  1. Non-imputable: The constitutive act of force majeure cannot, nor should it be attributable to the party that alleges it; that is, for an event to be considered force majeure, the employer cannot have caused it, whether through fault, fraud or negligence.
  2. Unpredictability: that the fact could not have been foreseen within the ordinary calculations; and that, although it has been foreseen, it is inevitable.

In this regard, the Supreme Court of Justice – today the National Court of Justice – has said:

 “There is no doubt that the background of the closing of the company’s activities was due to the fault of the employer, for the lack of payment to the treasury. Therefore, there is no logical and legal basis for the closing of the company due to force majeure, since the situation of force majeure defined in Article 30 of the Civil Code is not presented in the case, because the closing situation of the company was foreseeable by virtue of the delay of the payments before the State. Judicial Gazette. CIII year. Series XVII. No. 8. Page 2533; Quito, May 29, 2001. ((I did the underlining.)”

In this case, the elements detailed above are not configured, since the supposed fact of force majeure; that is, the closing of the establishment was attributable to the employer for not complying with a legal obligation. Likewise, the employer could foresee the closing of the establishment, since it was one of the sanctions provided by law as a consequence of its acts.

  1. Irresistibility: “that could not have been avoided” as expressed by Coustasse[5], refers to the conduct of those who invoke the force majeure in the face of the event itself, and consists of the mechanisms used to mitigate the unforeseen event tending to avoid its harmful effects.
  2. Causation: that the damages caused are a consequence of the unforeseen event that is constituted as a unforeseen circumstance and not of another factor.
  3. Impossibility to work. – For Alberto G Spota[6]: “The unforeseen circumstance means the legal or physical impossibility of executing the due provision (…)”. This element must be configured with irresistibility, since the impossibility of rendering the service must be linked to the impossibility to overcome the harmful effects of force majeure or unforeseen circumstance alleged.

For this analysis, it is necessary to consider that, to mitigate the effects of Covid-19 on industries, the Labor Code contemplates figures such as the temporary suspension of work activities – maintaining the payment of workers’ compensation – and cease of activities by the employer. Therefore, the impossibility to work as a cause to end the employment relation should not be temporary, since, if it were temporary, it could be facing a suspension of activities or possible cease of activities by the employer and not to a termination of the employment relation.

The termination of the employment relation, under this cause, does not constitute untimely dismissal, since the dismissal is the termination of the employment relation by unilateral decision of the employer. In this  case, the breakdown of the relation occurs due to the damaging effects of force majeure – events beyond the control of the employer. In this sense, Dr. Marcucci[7] states that the effect of the unforeseen circumstance and force majeure “(…) when they are actually proven in the labor field cause the contract to cease due to the absolute impossibility of continuing to provide the service and without any of the parties taking responsibility for it. Both are victims of force majeure (…) But neither of the two contractors is guilty of the misfortune of their former counterpart, nor therefore is forced to compensate (…) ”

Therefore, although the Covid-19 pandemic, by its nature meets the requirements of being non-imputable and unpredictable, its application as a cause for termination of the employment relation, and therefore, the exemption from the payment of compensation, cannot be applied in a generalized way based on the sole existence of the pandemic (Covid-19), because despite the fact that many industries reflect losses and liquidity problems, as a consequence of Covid-19, this does not necessarily mean that work is permanently impossible or that the effects have the necessary weight for the termination of the employment relation. It is imperative to carefully analyze the harmful effects of each case, to verify if the other three elements – irresistibility, causation and impossibility to work– are configured to justify the Termination of the employment relation for this cause: “force majeure or unforeseen circumstances make impossible to work”.

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[1] Published March 18, 2020 .- https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/documents/briefingnote/wcms_739158.pdf
[3] This effect has been contextualized by the Supreme Court of Justice, today the National Court of Justice: Judicial Gazette. CVIII year. Series XVIII, No. 4. Page 1434. (Quito, February 22, 2007); Judicial Gazette. CIV year. Series XVII. No. 11. Page 3395. (Quito, November 12, 2002); Trial N ° 228-2007-Ex Third Civil, Mercantile and Family Division. (Quito, November 5, 2009.
[4] National Court of Justice, Specialized Labor Division, Trial No. 0027-2018. (Quito, May 14, 2019); National Court of Justice, Specialized Labor Division, Trial No. 0026-2018. (Quito, February 4, 2019); National Court of Justice, Specialized Labor Chamber, Trial No. 1948-2015. (Quito, June 22, 2017)
[5] El Caso Fortuito ante el Derecho Civil, 1958  p. 114
[6] Instituciones del Derecho Civil, Contratos, volumen III, 1975, p. 538
[7] Panorama Contextualizado del Derecho Laboral Sustancial Colombiano, Marcucci Cesar, 2005, p.120

Extension of deadlines for tax matters

lawyers-ecuador-extension-of-deadlines-for-tax-matters

In accordance with the state of emergency declared by the President, the following tax authorities, in the exercise of their powers, have suspended the following deadlines and terms:

  1. Regulation NAC-DGERCGC20-00000022 issued by the Internal Revenue Service establishes that terms and deadlines in all administrative processes and the statute of limitations for collecting debts are suspended from March 16 to March 31, 2020. The suspension was extended until May 22, 2020 by regulation NAC-DGERCGC20-00000034.
  2. Regulation SENAE-SENAE-2020-0016-RE issued by the Customs Authority establishes that terms and deadlines in all administrative processes and the statute of limitations for collecting debts are suspended from March 17 to March 31, 2020. The suspension was extended until June 1st, 2020 by regulation SENAE-SENAE-2020-0025-RE.

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DISCLAIMER: The preceding text has been prepared for general information purposes only. CorralRosales is not responsible for any loss or damage caused as a result of having acted or stopped acting based on the information contained in this document. Any given situation requires the specific opinion and view of the firm in Quito / Guayaquil, Ecuador.

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Idealex – COVID-19 and international trade

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DETAILS

DATE: 15-05-2020

CORRALROSALES IN THE NEWS: 

-Andrea Moya

MEDIA: Idealex

The world is facing a health, human and economic crisis without precedent. The measures taken to reduce the effects of the pandemic, such as isolations and social distancing, have direct impacts on the supply and demand. The suspension of commercial and productive activities generates a global recession and higher unemployment.

In 2019, the global economy recorded its worst performance since 2009, with a grow rate of 2.5% and with global GDP grow projections for 2020 revised downwards. In 2019, the volume of world trade goods fell by 0.4% against 2018 and it is projected that in 2020 it would contract even more. COVID-19 appeared in this scenario.

According to the Economic Commission for Latin America and the Caribbean (ECLAC), COVID-19 is affecting the region for the following reasons:

  1. The decline in the economic activity of the region’s main trading partners.
  2. The drop in commodity prices.
  3. The interruption of global value chains.
  4. Lower demand for tourism services.
  5. Greater risk aversion and worsening global financial conditions.

According with ECLAC, the value of Latin America and the Caribbean exports will fall at least 10.7% by 2020 due to lower prices by 8.2% and volume in 2.5%.

table-international-trade-andrea-moya-01

In the case of Ecuador, given that its main commercial partners China and the United States are the countries with the most infections, it is foreseeable that the value of non-oil exports reduces. This fact added to the fall of the oil prices will generate a significant fall on the value of Ecuadorian exports.

Under these circumstances, the country’s trade policy must facilitate a prompt answer to this crisis. The reduction of non-tariff barriers to import and exports, especial procedures for the release and clearance of goods, simplified mechanisms for the reimbursement of taxes and payment facilities for taxes on foreign trade are measures that would allow companies to overcome the challenges derived from the pandemic.

The Ecuadorian Customs Authority has made and efficient work in order to facilitate foreign trade operations during the state of emergency, it has maintained its services in all customs districts through electronic channels, it has implements specific procedures for the inspection of goods and it has suspended the terms applicable for the abandonment of good through the duration of the emergency.

However, the following measures are needed urgently:

  1. The Law for Simplification and Tax Progressivity issued on December 31, 2019 amended the Production, Commerce and Investment Code adding article 157.1. This article establishes a simplified procedure for reimbursing any taxes applicable to foreign trade (drawback). The amount of the reimbursement is equal to a percentage of the FOB value of the export and must be done automatically after the export customs forms are definitive. This process must be put into place in an effective and immediate manner.
  2. The Law for Tax Equity establishes that the foreign exchange tax (ISD) paid on the import of raw materials, capital goods and other goods to be incorporated in production processes may be regarded as tax credit for the payment of the importer’s income tax within the following five years. The importer is able to request a reimbursement of the foreign exchange tax that has not been credited against its income tax. However, the reimbursement request procedure is slow and bureaucratic. It is necessary to adopt simplified reimbursement processes that are effective and resolved on a timely manner.
  3. Article 116 of the Production, Commerce and Investment Code establishes that the importers are able to request payment facilities on foreign trade taxes derived from the import of capital goods. This benefit must by applicable to the payment of foreign trade taxes on the import of raw material and similar goods.
  4. The third general provision of the Law for the Development of Production, Investment Attraction, Employment Generation and Fiscal Stability establishes that the investment incentives included in such law will be applicable for 24 months, this deadline expires in August 21, 2020. The President is able to extend this deadline for 24 additional months. It is importer to extend this deadline in order to stimulate local and foreign investment which may generate employment. It is also important to simplify the processes needed to access certain benefits such as the exemption of tariffs and foreign exchange tax on the import of raw material and capital goods needed for the development of investment projects.

These measures will contribute to protect the cash flow of the taxpayers which is a fundamental issue in order to keep companies’ operating and avoid, to the extent possible, its closure and the subsequent loss of jobs and default with its creditors.

This crisis has worsened the country’s fragile economy, particularly for the fiscal imbalance that has been occurring for several years, and the lack of contingency funds to be injected in an economic recession. The alternative is not the “deglobalization”, but an international cooperation policy that allows each country to develop its best capacities. Ecuador urgently requires structural changes in the labor and tax areas, along with a clear foreign trade policy.

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Table’s source: Special Report COVID-19 issued by the Economic Commission for Latin America and the Caribbean (ECLAC) – https://repositorio.cepal.org/bitstream/handle/11362/45351/1/S2000263_en.pdf

Latin Lawyer – Ecuador adopts expedited merger protocol amid covid-19 woes

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DATE: 29-04-2020

CORRALROSALES IN THE NEWS

-Xavier Rosales

MEDIA: Latin Lawyer

The prestigious international publication “Latin Lawyer” has published an article on the new accelerated merger protocol approved by the Ecuadorian antitrust authority as a measure to fight against the effects of Covid-19 in the country. To deal with this issue, the entity had the expert opinion of our Partner Xavier Rosales.

“It was something that had been expected for a long time, and it is positive for the development of companies,” says our Partner in the text, who believes that the head of the antitrust authority, Danilo Sylva Pazmiño, has a more open approach than previous ones, which facilitates the authorization process for non-problematic transactions.

As explained in the text, the Superintendency of Control of Market Power (SCPM) approved on April 20th a draft resolution that creates expedited reviews for certain transactions that require notification prior to the merger. According to local professionals, COVID-19 has caused widespread delays in the agency’s ability to examine and investigate certain transactions.

This new protocol will ensure that an agreement can be approved within 40 days. The authority will have 15 days to send its conclusions to its decision-making body that will have 25 days to issue a final decision. Previously, the authority had 50 days to send its conclusions to the First Instance Resolution Commission (CRPI), and the decision-making body 60 to issue a decision – with the possibility of requesting another 60 days if the merger is very complex.

This accelerated merger system will be available for holding companies that do not directly or indirectly do business in Ecuador, companies merging with a combined market share of less than 30% in all relevant markets, and dealings with companies in bankruptcy that have a credible defense.

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Gestión Digital – COVID-19 and the limits of antitrust law

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DATE: 28-04-2020

CORRALROSALES IN THE NEWS: 

-Ana Samudio

The main objective of antitrust law is to ensure the existence of an equal playing field so that competitors have the same opportunity to offer goods and services to consumers in every relevant market. This initial budget necessarily implies the ban of agreements between competitors – any express or implicit agreement that reduces uncertainty about the behavior of a competitor – and the abuse of market power.

Within the framework of necessary and urgent measures to confront the world health crisis derived from the COVID-19 pandemic, several competition authorities have seen the need to relax – and even suspend – the sanctioning regime applicable to agreements between competitors, allowing exceptionally that these take place when temporary cooperation is necessary to guarantee the fair provision of essential goods and services during the crisis.

The first such announcement was from the Norwegian competition authority, which allowed, over a three-month period, coordination of itineraries between two local airlines to ensure the availability of the service. This announcement was quickly followed by regulators in Germany, England and the Netherlands, who relaxed the control regime for agreements between competitors aimed at guaranteeing the provision of goods and services; allowing competitors: (i) the exchange of information regarding availability, (ii) the cooperation necessary to keep the establishments open, (iii) the sharing of logistics of warehouses and transport; and (iv) the assignment / exchange of personnel to meet demand.

On its part, the European Competition Network (ECN), which groups the European Union’s competition authorities, issued a joint statement determining that, under current circumstances, reasonable cooperation between competitors would not constitute a restriction of competition in the terms of the community regulation and / or creates efficiencies in the production and distribution of goods and services that overweight the restriction that they could generate; and defined channels of attention to resolve doubts that operators may have about the legitimacy / illegitimacy of an intended cooperation, in light of these exceptional circumstances.

Likewise, the authorities in charge of the control and judgment of competition matters in the United States of America -Department of Justice and Federal Trade Commission- have created an expedited procedure -with duration of seven (7) calendar days- for the analysis and authorization of cooperation between competitors. The entire process is carried out online, for which operators interested in cooperating must provide information that demonstrates the relation with the crisis, necessity, and reasonability of the cooperation, under the protection of the crisis unleashed by the pandemic.

In Colombia, an exceptional regulation was created by which the Logistics and Transportation Center, created as an independent entity from the competition authority, has the mission of evaluating and approving agreements between competitors that are intended to generate efficiencies in the logistics and cargo transportation market which would be deemed illegal at any other time.

Along with these measures that make the system applicable to agreements between competitors more flexible, several authorities have stressed the importance of guaranteeing the provision, at fair and competitive prices, of products considered essential to protect the health and life of consumers (such as respirators, masks and disinfectant products), while warning that the operators that abusing their market power to affect this guarantee will merit a swift and hefty sanction. Along these lines, the Superintendence of Control of Market Power in Ecuador has issued two warrants to producers and sellers of these goods, reminding them that, according to the Organic Law of Regulation and Control of Market Power, they cannot take advantage of the emergency to increase their profit margins through unjustified price increases and will remain vigilant and implement the necessary control actions to preserve consumer rights and free competition.

In the first of the warrants, the Superintendent of Control of Market Power stated, that “Any variation in prices must obey the dynamics of the market and the individual and independent decisions of economic agents and not to anti-competitive agreements or union recommendations.” This assertion -which a priori would be contrary to the affirmative actions taken by competition authorities from other jurisdictions that were explained above- applies to the anticompetitive price-fixing agreements and not to the fair temporary cooperation between competitors aimed to benefit the consumers and tends to guarantee the supply  in this delicate estate of emergency, under the exemption to the prohibition provided in article 12 of the Organic Law of Regulation and Control of Market Power, which in the present state of affairs would justify cooperation between competitors when the following conditions are met simultaneously:

  1. Consumers or users be allowed to participate equally in their advantages: The purpose of cooperation would be to guarantee the provision of goods and services during the state of emergency, with which this condition would be fulfilled.
  2. That they do not impose restrictions that are not indispensable for the achievement of those objectives: Any intended cooperation must be strictly limited to measures required to meet the objective.
  3. That they do not grant economic operators the possibility of eliminating competition with respect to a substantial part of the products or services contemplated: The terms of the cooperation must not constitute barriers of entry or permanence of other competitors in the market.

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Implementation of an expedited merger control procedure by the Superintendence of Market Power Control

combination-transactions-control-antitrust

On April 20, 2020, the Antitrust Authority issued an abbreviated analysis and control procedure applicable to certain combination transactions.

This expedited procedure, also known as fast-track, is common in most jurisdictions that have an antitrust merger clearance process and generally apply to transactions that either (i) do not imply any change in the market structure – such as a change of control of a local business in favor of a foreign acquirer with no prior participation in the Ecuadorian market-; or, (ii) in which,  a priori, the market power resulting from the operation is not significant enough to allow unilateral anticompetitive/abusive behaviors by the combined operator.

The analysis and resolution within a fast-track process must be completed within 25 business days. This term contrasts with the regular process that usually lasts between 4 and 14 months (when remedies apply).

The fast-track process is applicable to the following 6 scenarios:

  1. When the change of control of the business occurs in favor of a foreign economic operator with no prior economic activity in Ecuador.
  2. In horizontal combinations (transactions between competitors) where the joint market share of the economic operators involved in the transaction and of their affiliate entities -when applicable- is less than 30% in each relevant market affected by the transaction.
  3. In horizontal combinations that occur in markets where the Herfindahl-Hirschman index (HHI) before the combination is less than 2,000 points and, as a result of the transaction, the HHI index variation is less than 250 points.
  4. In vertical combinations (transactions between operators in the same production/marketing chain), where the joint market share of the economic operators involved in the transaction and of their affiliate entities -when applicable- is less than 30% in each relevant market affected by the transaction.
  5. In vertical combinations where the Herfindahl-Hirschman index (HHI) of each of the vertically integrated markets post-merger is less than 2,000 points.
  6. In transactions involving one or more economic operators that are at risk of bankruptcy, duly supported and qualified by the Antitrust Authority.

The implementation of the fast-track processis highly positive to facilitate new business opportunities, particularly involving foreign investors. In addition, it contributes to the timely application of the competition regulation in the scope of merger control during the state of emergency deriving from Covid-19.

 

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CORRALROSALES

Gestión Digital – Implications of the Declaration of Sanitary Emergency and State of Emergency in the Administration of Justice

state-of-emergency-mateo-zavala-gestión-digital

DETAILS

DATE: 15-04-2020

CORRALROSALES IN THE NEWS: 

-Mateo Zavala

On Thursday, March 12, 2020, the Ministry of Public Health declared a State of Sanitary Emergency due to the outbreak of coronavirus—or COVID-19—to prevent a potential massive contagion among the population.

Despite having declared a State of Sanitary Emergency, the Judiciary Council and the National Court of Justice did not make any immediate pronouncements, which meant that activities in all Judicial Branch offices continued as normal.

On March 16, 2020, the Judiciary Council, through Resolution 028-2020, restricted public service in judicial offices, with the exception of judicial units with jurisdiction over: flagrante delicto, criminal, violence against women and the family unit, traffic, juvenile offenders, multi-competent units and penitentiary guarantees.

In turn, The National Court of Justice, through Resolution 04-2020, ordered on the same date the suspension of terms and deadlines in all judicial proceedings, except for flagrant crimes while the State of Sanitary Emergency continues; this is, until May 10, 2020.

Can a person go to court if constitutional rights not limited by the declaration are violated during the State of Emergency?

Note that declaring a State of Emergency, as set out in article 165 of the Constitution, only limits freedom of movement and freedom of association and assembly rights. Therefore, if during the State of Emergency any right other than those mentioned above is violated, citizens may initiate the actions set forth in the Constitution before the criminal judges on duty by meeting the requirements established in the Organic Law on Jurisdictional Guarantees and Constitutional Control, and in the decisions issued by the Constitutional Court.

The Constitution and the Organic Law on Jurisdictional Guarantees and Constitutional Control foresee the following actions in case of constitutional rights’ violation:

i) Precautionary measures action, which can be requested independently or in conjunction with another constitutional action for the protection of rights, will depend on whether the claim is to stop the violation of a right or to avoid the violation thereof; ii) Protective action; iii) Habeas Corpus action; iv) Access to public information action; and v) Habeas Data action.

Knowledge and resolution of these actions, in accordance with article 86 numerals 1 and 2 of the Constitution, pertains to any judge of the Republic, given that the aforementioned norm establishes that all judges of Ecuadorian territory are competent to hear and solve constitutional cases. Thus, if there is a violation of constitutional rights that are not restricted under the State of Emergency, it is possible to approach any of the flagrante delicto units to request cessation of the violation.

Do court servers perform teleworking? What happens to the hearings and other proceedings scheduled for the dates when the judicial offices are not open to the public?

Even though the Judiciary Council has taken several actions for the use of technological means in the administration of justice, such as electronic notifications, it decided to suspend public service for judges and courts and did not opt for teleworking for judicial—non-administrative— officials.

Previously scheduled proceedings and hearings, on dates when the State of Sanitary Emergency continues, will be rescheduled according to the availability of each judicial unit. The Judiciary Council did not deem it appropriate to carry out the proceedings and hearings via telematic means, although this is permitted by law.

If the health emergency continues beyond the initially established period, it would be highly convenient for the Judiciary Council to arrange for hearings and other proceedings to be conducted electronically, in order to alleviate the impact of the situation on the administration of justice. It is worth noting that some proceedings are scheduled for 2022, which reveals the overload in courts and tribunals.

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