New Antitrust Bill in Argentina

The most relevant amendments, introduced by the Bill, as compared to the previous law, are as follows.

Prohibited Agreements and Practices.

• Prohibited Acts. The Bill prohibits agreements between competitors and unilateral acts, practices or conducts whose purpose or effect is to limit, restrict, falsify, or distort competition or market access in a way that may be detrimental to the general economic interest. As a result, economic concentrations which may generate concerns, contemplated in this Section by the current law, are excluded from the general prohibition.
• Hard core cartels. A new practice is included focused on demand: “Directly or indirectly agreeing to refuse to satisfy demands for the purchase or sale of goods or the rendering or contracting of services to one or more third parties”.
• Abuse of dominance. These practices are contemplated only for cases in which the company owns a dominant position. Subsections (b) and (j) of the currentlaw are eliminated, and a new subsection is included, namely: “Abusive promotion of judicial, administrative or disciplinary proceedings against a competitor - actual or potential - with the purpose of expelling it or preventing its access to a market, dissuading it from implementing alternative competitive strategies, or undermining its business or professional reputation”.

Economic concetrations.

• A Broader Definition for Economic Concentrations. It is clarified that in terms of economic concentrations an undertaking is understood as any entity or part thereof that is in a position to offer or demand goods or services, regardless of its legal organization and even if it lacks legal personality.
• Prohibited Economic Concentrations. The economic concentrations prohibited by the Bill are those whose purpose or effect is or may be to create, protect or strengthen a dominant position, seemingly changing its previous test which referred to the general economic interest.
• Suspensory system. A suspensory system is established for the notification of economic concentrations before the Markets and Competition Agency (the “Agency”), a new authority created by the Bill. The economic concentrations’ notification must be made prior to (i) the date corresponding to the completion of the act; (ii) the materialization of the acquisition of control; or (iii) the acquisition of substantial influence, whichever occurs first.
• The Notification Thresholds are increased. Economic concentrations with a total turnover in the group of affected companies which exceeds the 500,000,000 Mobile Units in the country are subject to mandatory merger control. This represents a substantial increase in comparison to the current thresholds of 100,000,000 Mobile Units. No initial Mobile Units value is set out in the Bill.
• Voluntary Notification. A voluntary notification is created for those economic concentrations that are not subject to Section 9 of the Bill, which can be made before or up to 15 days from its implementation.
• Notification of those Economic Concentrations which do not meet the notification thresholds. The Agency may require the notification of economic concentrations that do not meet merger control thresholds, either before or within 180 days when it determines that there are reasonable indications that the economic concentration in question may constitute, protect, or strengthen a dominant position.
• Changes in the de minimis exemption. The de minimis exemption (materiality test), reduces its 36-month transaction lookback value from 60,000,000 to 45,000,000 Mobile Units.
• A New Exemption is included. The complete or fiduciary transfer of assets and liabilities of financial entities ordered by the Central Bank of the Argentine Republic (Banco Central de la República Argentina) upon a Section 35 bis of Law No. 21,526 of Financial Institutions scenario (bank failure) is exempted from notification.
• Advisory Opinions. The reference that is included under the current law that the decision of the authority is not subject to appeal has now been eliminated.
• Deadline. The resolution deadline for the Agency’s secretary to issue a decision is of 60 days from the notification date of the economic concentration if the information provided is accurate and complete.
• Challenge of economic concentrations. Economic concentrations that have been notified and authorized, both those included in Section 9 of the Bill and voluntary notifications, may not be challenged in administrative proceedings (in voluntary notifications, this will apply after 180 days have elapsed since the implementation of the Bill).

Enforcement Authority.

• Markets and Competition Agency. The Bill envisages the creation of the Agency as a new decentralized and autarchic authority within the scope of the National Executive Power. The Agency will be headed by a Secretary appointed by the Executive Power who will hold office for 5 years, with the possibility of being reelected only once. This Agency will have several responsibilities, among which, the prosecution of anticompetitive conducts and the analysis of economic concentrations can be highlighted.

• Antitrust Tribunal. The Bill foresees the creation of the Antitrust Tribunal (the “Tribunal”) as a decentralized and autarchic agency within the scope of the National Executive Branch. The Tribunal shall be composed of 5 members appointed by the Executive Power. In addition, the Tribunal will select 15 external associate members to provide their opinion in certain actions pursuant to the Bill. Each member of the Tribunal will be in office for 5 years. The renewal of its members will be staggered, partially, and they may be reelected only once. Among the responsibilities of the Tribunal will be the imposition of sanctions for anticompetitive conducts, as well as resolving appeals filed by the notifying companies in cases of rejection or conditioning of economic concentrations.