Brief comments on the Institutional Working Paper of INDECOPI N° 003-2020: Proposal for INDECOPI to be a Constitutionally Autonomous Agency

In a social and democratic State, that seeks the efficient economic functioning of the market, legal certainty and equality must be provided, so that through the autonomous bodies the State can rely on these to provide efficiency, control and execution in certain tasks in different areas.

State protects companies or agents in the market (right to free enterprise) and promotes the protection of consumers as well. Based on this, there is a need for Indecopi to be a constitutionally autonomous body since potential contravention of its functions, independence, and impartiality, could affect essential principles such as the protection of fundamental rights, in particular Consumer Rights.

In this sense, in the Institutional Working Paper of Indecopi N ° 33-2020, the Institution of Free Competition and Intellectual Property suggest a constitutional reform that incorporates in Article 65 its functions, which does not necessarily implies its consideration as an Autonomous Body. There are subjective elements such as the need for non-interference in their functions, so it is not enough that the functions are mentioned in the Constitution. There are other rights in the Constitution, such as the Right to Work, which has the description of its functions in articles 2.15, 22 and 29; nevertheless, the Ministry of Labor is not an Autonomous Body.

Finally, regarding resolutions to be challenged with the Judiciary, I consider that Indecopi should continue to be competent to solve as a second administrative instance to provide users/citizens with legal certainty. The analysis at the judicial level would be of a procedural rather than a technical nature, given that Indecopi is an entity specialized in its field. As long as Indecopi performs functions impartially and independently, the State should not question its technical work.

Thalia Tapia Morales
Intellectual Property Legal Assistant