13 Ago 18 New Argentine Antitrust Regulation

By Agustín Cerolini and Tomás French. 

Recently, the Argentine Congress passed the new Antitrust Law No 27.442 (the “AL”), which replaces the previous Law No. 25.156.

The law has introduced many substantial reforms regarding its predecessor, which are in line with international standards in terms of Antitrust Regulations. Following, we outline the main changes introduced by the new law.

• Creation of the National Competition Authority (“NCA”). The AL creates this new organism, which is divided in: (i) the Antitrust Tribunal (the decision-making body), (ii) the Secretariat of Instruction of Anticompetitive Behaviors (body that investigates the anticompetitive conducts), and (ii) the Secretariat of Economic Concentrations (body in charge of preliminary analysis regarding economic concentrations). In addition, it creates a specialized court within the Federal Civil and Commercial Court of Appeals, as a review stage.

• Concentrations control ex ante. The AL implements a new concentration control that, unlike the former, establishes that the closing remain subject to prior approval of the National Competition Authority. The infringement of the duty to notify or carrying out the operation without previous authorization is subject to substantial fines. This new control ex ante regime will enter into force a year after the NCA comes into operation. Finally, the AL introduces -as an innovation- the payment of an administrative fee for each notified operation, which goes from AR$100.000 to $400.000.

• Increase on the notification thresholds. The new AL solved an important distortion regarding the outdated figures established by the previous legislation regarding the notifications thresholds. The new AL sets up reference values as Adjustable Units which will be updated annually. Thereby, the concentrations likely to being notified are those whose total turnover –of the acquiring group and target exceeds 100 million Adjustable Units (equal to AR$ 2.000 million), while the minimis exception is applied only when the operation amount and the asset values situated in the country subject of the operation, do not exceed an amount equivalent to 20 million of Adjustable Units each (equal to AR$ 400 million).

• Anticompetitive practices. The new AL modified the previous antitrust regime, in which there were no anticompetitive behaviors per se. In this regard, the new regulation identified certain practices as “absolutely restrictive practices of competition”. These practices are now listed under Section 2 of the AL and must be deemed null and will not generate any effects. In addition, the amounts of fines applicable to offenders are considerably increased.

• Leniency program. Among the many features introduced, the new AL creates a leniency program under which those who provide evidence of anticompetitive practices and cooperate with the NCA in their investigations, may avoid criminal and civil penalties. The benefit will be available for the first complainant, while those who provide additional evidence might get a reduction in the penalties. Moreover, in order to allow interested parties to feel safeguarded, their identity and the evidence provided shall remain confidential.

In conclusion, the new AL came to fix many inconveniences raised by the previous regulation. The new regulation introduced changes that seek (i) to speed the concentration control, which has been criticized for the past years; (ii) ease the investigation and penalties of anticompetitive practices; and (iii) dissuade non-compliance conducts by raising the amount of sanctions involved.

For any questions or additional information please contact:

• Agustín Cerolini – acerolini@ceroliniferrari.com.ar

• Tomás French – tfrench@ceroliniferrari.com.ar