Who has the right to take part in Antitrust Proceedings?
The Constitutional Court’s recent decision to dismiss the petition filed by AVLA Seguros and Inversiones Asterix, in the so-called Casinos Case (Case No. 17,314-26-INA), leaves several important lessons about the procedural limits of antitrust law and the delicate balance between procedural efficiency and the participation of affected third parties.
The dispute arose after both companies, creditors of Enjoy in the context of its judicial reorganization, sought to appear as independent third parties in the proceeding brought by the Fiscalía Nacional Económica before the Tribunal de Defensa de la Libre Competencia against that company and other casinos, along with senior executives of those companies, over alleged bid-rigging in tenders held between 2020 and 2021. According to the petitioners, the precautionary measures ordered in the case — which bar the casinos from entering into contracts — directly affected transactions committed to under Enjoy’s Judicial Reorganization Agreement, particularly the transfer of assets.
The Constitutional Court found that the issue raised was not properly constitutional in nature. In categorical terms, it held that “the petitioner’s argument fails to articulate a constitutional conflict” and that the complaint “is not directed at the normative content” of Article 23 of the Code of Civil Procedure, but rather “at how the Tribunal de Defensa de la Libre Competencia interpreted it.”
Moreover, it added that this was “purely a matter of legality.”
The decision appears correct from the standpoint of the nature of an inapplicability action. The Constitutional Court cannot become a body that reviews ordinary judicial interpretations every time a party disagrees with the scope a court has given to a legal concept such as “present interest.”
The ruling itself notes that an inapplicability action “is not a suitable procedural avenue to challenge judicial decisions” for the purpose of reviewing or amending them.
But the underlying debate remains relevant. Proceedings before the TDLC often produce economic effects that go beyond the parties formally involved. In heavily regulated and financially complex markets — such as casinos, telecommunications, energy or payment systems — precautionary decisions and potential penalties can affect creditors, investors, financiers and other third parties.
The legitimate question is to what extent such parties should have meaningful opportunities to participate when their property rights may be significantly affected.
This is not about indiscriminately opening antitrust proceedings to any interested party. Doing so could make already complex and strategically sensitive proceedings unworkable. However, it also does not seem reasonable to ignore that certain precautionary measures could alter financial transactions, corporate reorganizations, and even market structures — which makes it necessary, at the very least, to hear from those who could be affected.
The case also illustrates another concerning trend: the growing tendency to frame essentially procedural or interpretive disputes as constitutional matters. The Constitutional Court was explicit in noting that not every judicial disagreement amounts to a constitutional conflict. At a time when many complex disputes end up being shifted into constitutional venues, this ruling sends an important signal about the need to preserve each jurisdiction’s proper role.
Meanwhile, the main proceeding over alleged bid-rigging in the casino industry will continue. With the suspension ordered by the Constitutional Court lifted, the TDLC can move forward with the pending evidentiary hearings. But the debate over who may participate in this type of proceeding — and under what standards — will likely remain open for some time.
Opinion column published on Estado Diario.
