Changes to Merger Control.
REPORT
Competition & Antitrust Department report: “Changes to merger control”
Dear Sir or Madam:
New competition regulations [1] came into force in Argentina in May. The main changes affecting merger control are the following:
- Increase of thresholds that trigger merger control: (a) the argentine turnover of the acquiring group plus the argentine turnover of the target during the previous fiscal year must be equal to – or more than- 100 million reference units (“Unidades Móviles”[2]); AND (b) the price of the transaction OR the value of the argentine assets acquired must be equal to -or more than- 20 million Unidades Móviles or 60 million Units in the last 36 months in the same markets.
- Filing is mandatory only for the acquiring group. [3]
- The new Argentine Competition Act includes the obligation to pay a filing fee. [4]
- The Act introduces premerger control (although this provision will only enter into force one year after the new Competition Agency is in office) and penalties for gun jumping. [5]
- The Act simplifies the procedure for transactions that raise no concerns. [6]
- Filings will be public: non-confidential merger filings information will be published on the Competition Agency’s website [7] in order to allow third parties to file objections (the Competition Agency will not be required to consider such objections).
- In case the Competition Agency considers that a transaction may restrict competition, before issuing its final resolution, it shall state such objections in writing and call the parties to a hearing to consider possible remedies. In such case, the 45-day term for the Competition Agency to issue its final resolution can be extended for 120 additional business days.
1. Argentine Competition Act Nbr 27,442 and Regulatory Decree Nbr 480/2018.
2. The value of the reference Unit for 2018 is AR$20. This value will be updated on a yearly basis considering the variation of the Consumer Price Index.
3. The transaction may be filed for merger control either by the buyer or its immediate or ultimate controller.
4. Ranging from 5,000 to 20,000 Unidades Móviles, to be defined by the National Executive Branch upon suggestion by the Competition Agency.
5. Up to a daily amount equivalent to 0.1% of turnover of the infringer’s group in Argentina during the last fiscal year or, if such calculation is not possible, up to 750,000 Unidades Móviles.
6. Pursuant to Argentine Merger Control Guidelines, these cases among others would be conglomerate mergers, transactions in which the combined market share of the target and buyer is under 20% and those in which the Herfindahl-Hirschmann Index (that measures market concentration) is below 2,000 points.
7. Within 5 (five) days from filing.
Should you require any further information on this matter, please do not hesitate to contact us.
Sincerely.
Agustín Waisman
Mercedes Pando