242 COMPETITION LAW IN TOURISM 4. CAN A CLAIM BE OPEN EX-OFFICIO OR WITHOUT A SPECIFIC DAMAGED PARTY? On this matter we must check the Attorney General’s Consultation C-079- -98: “I. – How the administrative procedure is initiative in matters of consumer’s relations. If we analyse, at this point, the provisions of the Law on Promotion of Competition and Effective Defense of the Consumer, No.7472 of December 20, 1994, we will find that it has the following, in relation to the start of procedures”. Thus, Article 53 states: “Procedure. The action before the National Consumer Commission can only be initiated by virtue of a complaint from any consumer or person, without necessarily being aggrieved by the acts that it denounces. Complaints are not subjected to formalities, nor is the authentication of the signature of the complainant required. They can be raised by a person, before the National Consumer Commission, though a document, telegram or other means of written communication”. Therefore, it seems clear that the legislative branch will not admit the ex officio opening of the procedure in consumer matters, a situation that is confirmed not only by the literal word of the rule, but also because it could have been stated as so, as it was done in that same law regarding competition law matters, in terms of the possibility of opening the procedure ex-officio. The Law for the Promotion of Competition and Effective Defense of the Consumer establishes, in relation to the procedures initiated before the Commission to Promote Competition, the following: “Article 18. – Creation of the Commission to Promote Competition. The Commission to Promote Competition is created, as a maximum decentralized body; it will be attached to the Ministry of Economy, Industry and Commerce. It will be responsible for knowing, ex officio or by denunciation, and sanctioning, when appropriate, all practices that constitute impediments or difficulties to free competition and unnecessarily obstruct the fluidity of the market.’ The administrative instance before this Commission is mandatory and should be followed before resorting to the judicial way, except as provided in Article 17 of this Act”.
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