On May 18, 2023, the Secretary of Commerce of the Ministry of Economy issued Resolution No. 905 by which it repealed Resolution No. 40/2001 which provided for the “Guide for the Notification of Economic Concentration Operations”, and issued a new updated regulation in its replacement (hereinafter, the “Regulation”).
The Regulation establishes the procedure through which the notification of the acts of economic concentration detailed in Article 7 of Law No. 27,442 (hereinafter, the “Antitrust Law”) must be carried out. One of the main innovations is the establishment of a shorter summary procedure for those economic concentrations that may be less likely to be subject of the prohibition provided for in Article 8 of the Antitrust Law.
The main modifications are described below:
- Obligation to provide complete, sufficient and truthful information: It is provided that all information and documentation submitted by the parties and/or third parties must be complete, sufficient and truthful. The information provided in response to forms FO, F1, F2 and any other additional information, including the information submitted through the Remote Procedures Platform (hereinafter, “TAD”), shall be considered as a sworn statement. Consequently, its falsity gives rise to the intervention of the competent authorities and the application of sanctions. The innovation in this regard is that, in the event that the information is not submitted or is incomplete, the administrative body or attorney-in-fact with sufficient powers will be required to justify such circumstance.
- Consequences of delay or failure to submit information: If the information contained in the F1 and/or F2 forms is incomplete and the justifications provided by the parties are also insufficient, the National Antitrust Commission (hereinafter, the “CNDC”), shall require that the corresponding forms be adapted within 30 days of the respective ruling. If the parties do not comply with the requirement within such a term, or if the information submitted in response to such request is incomplete or defective, the CNDC will request that the missing or incomplete information be provided within 5 days. Once such deadline has expired without the requirement being complied with, and after the CNDC has issued an opinion, the Secretary of Commerce may consider the transaction as not having been notified and apply fines for late notification.
- Computing and interruption of deadlines: All deadlines indicated in the Regulation will be counted in administrative business days. Once the filing has been made, the 45-day term provided for in Article 14 of the Antitrust Law will not begin until the parties (i) have proven their invoked legal capacity; (ii) submitted the documentation that instrumented the transaction duly translated; or (iii) when they undertake to provide information on any of the items of the respective form F1 and/or F2, up to the time of the submission. The deadlines will be interrupted from the moment the CNDC requests the parties to submit forms F1 and/or F2, restarting the computation of the deadlines once the respective form has been submitted. The deadlines will be suspended from the moment the CNDC requests additional information from the parties and/or makes observations on the forms, and until such information has been provided.
- Method for the notification of an economic concentration operation: The notification of economic concentration transactions must comply with the requirements described herein. In this regard, forms FO, F1 and F2, as well as the documentation attached to such forms, must be submitted through the TAD. The documents must be digitalized in a format that allows their review through the use of search criteria. The format varies according to the type of information involved (qualitative or quantitative). Documents written in a language other than Spanish must be accompanied by their respective translations, signed by a certified translator registered in Argentina. In some cases, the CNDC may waive this requirement.
- Parties required to notify: In all the cases provided for in subsections a), b), c) and d) of Article 7 of Law No. 27,442, the notification must be made by the acquiring party or the merging and merged party, as applicable, or their immediate or ultimate controlling parties. In the cases provided for in subsection e) of the aforementioned article, the notification shall be made by the company acquiring substantial influence in the competitive strategy of a company, or its immediate or ultimate controlling parties. In all cases, the notification shall be optional for the selling party, although the CNDC may require the participation of the selling or transferor, as the case may be, in the notification process.
- Pre-notification: The parties may contact the CNDC prior to making the notification of their transaction, in order to prepare the information to be accompanied and to raise doubts regarding the notification procedures. The information provided during this stage is without prejudice to the final review that will be made of it. Moreover, the CNDC is not bound by the appraisals made at this stage, and the final decision on how to proceed with the procedure is left to the exclusive discretion of the parties.
- Summary Procedure (PROSUM): A brief procedure is foreseen for those cases in which it is presumed that an economic concentration operation does not have significant effects on competition. Thus, companies may opt for the Summary Procedure by filing form FO. The CNDC may require the adequacy of the procedure.
- Ordinary Procedure: In cases in which the notified economic concentration operation does not fall within the criteria established by the CNDC for the Summary Procedure, and when the Enforcement Authority so determines, the procedure shall be carried out according to the Ordinary Procedure, and the parties must submit forms FO, F1 and, eventually, form F2, as the case may be.
- The Resolution contains the notification forms FO, F1 and F2.
The Resolution instructs the CNDC to establish within 15 days the criteria to determine in which cases the concentration operations notified under the terms of Article 9 of the Antitrust Law may qualify for the Summary Proceeding. Said term expires on June 12, 2023.
Finally, the Resolution will become effective 30 days after its publication in the Official Gazette, i.e., on July 5, 2023.
You can access the Resolution by clicking?here.
If you have any questions, please contact:
Marcos Nazar Anchorena:?[email protected]
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