News and developments
Antitrust | New rules to notify economic concentrations
As set forth in its section 5, the effectiveness of the Rules would occur 30 days following the publication of the Resolution in the Official Gazette, what happened on July 6, 2023.
The purpose of these Rules, which abrogated the preceding ones, provided for more than 20 years ago by means of Resolution N° 40/2001 of the former Antitrust and Consumer Defense Secretariat – is to regulate the procedure whereby the economic concentration operations detailed in section 7th of Act N° 27,442 (the, “LDC” by its acronym in Spanish) must be notified.
It must be recalled that according to section 9 of the LDC, the economic concentration operations exceeding the business volume threshold equivalent to one hundred million (100,000,000) of mobile units (at present AR$ 16,255,000,000), and which are not reached by any of the exceptions set forth in section 11 of the LDC, will be notified for their examination by the Enforcement Authority of the LDC.
This is so because the LDC sets forth in its section 8th that the economic concentration which purpose or effect is or may be to restrict or distort competition, causing a damage for the general economic interest are forbidden.
To that effect the Resolution had been issued, to provide for, through the Rules, the procedure applicable to said notice so the Enforcement Authority of the LDC may evaluate the suitability of the reported economic concentration.
Among its main characteristics it must be highlighted that the Rules reflected the directive set forth by section 9 of the LDC, whereby a summary proceeding should be established for the economic concentration that at the Enforcement Authority’s criterion could have less chances to be reached by the prohibition of section 8th of the LDC. Said directive had not had a regulatory source, in spite of the fact that the LDC is in force since year 2018.
Hence, by means of the Rules two types of notification procedures were set forth, which involve the presentation of information by the notifying party, and the development of analytical levels by the Enforcement Authority, in both cases increasingly, pursuant to the requirements provided for by the three types of Forms specified in Rules: F0, F1 y F2.
Said procedures are the following:
-
- Summary proceeding (PROSUM by its acronym in Spanish): applicable to cases in which presumably an economic concentration operation does not have significant effects on In this case, the Parties may choose a Summary Proceeding through the presentation of form F0.
-
- Ordinary proceeding: applicable to cases in which the notified economic concentration operation does not fit into the criteria set forth for the Summary Proceeding, it must be carried out by filing forms F0, F1 and, eventually, form F2, as appropriate.