1E9Ct5D

on the circumstances under which they are undertaken; they may even be considered topromote market efficiency. It is therefore necessary to measure them, analyze them, andstudy them closely. As a result, the LFCE requires that they be analyzed from the perspectiveof the substantial power of the economic agent 9 in the relevant market or in arelated market 10 and that such practices be engaged in with respect to goods and servicescorresponding to the relevant or related market in question. Clearly, we have a systematizationof factors considered when applying the rule of reason, but the manner inwhich these factors are set forth in the LFCE merits certain comments.The first factor established by the LFCE includes several presumptions: first, that economicagents do not compete with one another—because otherwise we would be in thepresence of per se practices—and that they fix, impose, or establish an exclusive distributionof goods and services on other economic agents in the market, which would giverise to a rigid market with undesirable effects, and could also result in serious verticalrestraint and provoke the displacement of competitors from the market. However, verticalrestraint of this type can also be analyzed from another perspective, which is thatof “a program oriented toward the search for legitimate efficiencies in the distribution ofa particular brand,” which means that on the basis of the analysis, far from being consideredmonopolistic, the restraint can be seen as a market promoter, assuming the economicagent that engages in it does not have substantial power in the relevant market,and therefore does not have the ability to fix prices, high or low, in the market.Another presumption is that such exclusive distribution leads to the “division, distribution,or assignment of clients or suppliers” and that this is a result of the power of theagent that promotes the practice or of the agent to whom the clients or suppliers areassigned. It also implies that the practice has to be analyzed in the geographic area where it247Economic Competition__________9“Article 13. The following should be evaluated in order to determine if an economic agent has substantialpower in the relevant market: (i) its market share and whether it can unilaterally set the prices or restrictthe supply in the relevant market without the competitive agents being able to act or to potentially counteractthat power; (ii) the entry barriers and the elements that may alter those barriers and also other competitors'offer; (iii) the competitors’ existence and power; (iv) the possibility the economic agent and itscompetitors have to access the input sources; (v) its recent performance; and (vi) all other criteria establishedin the regulations of this Law.”10“Article 12. The following criteria must be evaluated in order to determine which are the relevant markets:(i) the possibility to substitute the goods or services in question by other national or domestic goods or services,taking into consideration the technological potential, to what extent consumers have substitutes andthe time required for that substitution; (ii) the distribution cost of the goods; their relevant inputs; their supplementsand substitutes from other regions and from abroad, taking into account freight, insurance, customduties and non customs restrictions, the restrictions imposed by the economic agents or theirassociations and the time required to supply the those regions from the market; (iii) the costs and potentialaccess to other markets of users or consumers; and (iv) the federal, local or international standard restrictionsthat limit the access of users or consumers to alternative supply sources, or the access of the suppliersto alternative customers.”