In general terms, the designated authority to oversee and control mergers in Venezuela is the Antimonopoly Superintendency. That entity is governed by, inter alia, the Antimonopoly Act.
The Antimonopoly Superintendency is also the designated authority to determine whether a merger will restrict what the law considers a fair economic competition or if it produces a dominant position in the relevant market in which the involved companies operate.
In addition to the Antimonopoly Superintendency, other agencies are involved in the merger control procedures when the activities of companies are controlled by a regulatory framework (i.e., insurance, banking and telecoms). Specific regulations and variations in the merger control procedures depending on the commercial activities of the involved parties are described in subsequent sections.
For companies that are not regulated, it is not mandatory to request prior authorisation or to notify the Antimonopoly Superintendency of a proposed or pending merger. However, the commercial registry must issue a formal authorisation of any merger once the legal requisites are met. The basic rules regarding mergers in Venezuela are established in the Commercial Code.
The authorisation of the commercial registry only refers to the fulfilment of the formal procedure established by the Commercial Code; the commercial registry does not evaluate or judge the transaction itself in the context of the antitrust legislation. When the transaction entails companies that are regulated, one of the requisites for the transaction will be in compliance with its specific regulations, as established by the designated competent authority.
The Antimonopoly Act prohibits economic concentrations that may result in restrictive practices or may create a dominant position in the relevant market. The prohibition only affects concentrations that could significantly change the structure of the relevant market and thus restrict fair economic competition. Therefore, it does not affect existing monopolies or economic concentrations that do not result in dominant positions.
Although there is no requirement for prior notification or authorisation of a merger regarding unregulated companies, some unregulated companies decide to notify the Antimonopoly Superintendency for strategic reasons. It should be noted that the regulations of the Antimonopoly Act have not been promulgated. Although those regulations should not modify the content of the Act, they could qualify certain requirements regarding the notifications of mergers to the competent authority.
To avoid risks during the execution of the merger (e.g., if there is a hostile opposition to the merger), it is possible to request the Antimonopoly Superintendency’s opinion on the transaction.
While the Antimonopoly Superintendency considers its opinion regarding the merger, the transaction may be consummated with the understanding that the opinion issued by the Antimonopoly Superintendency will be binding, and that if it determines that the transaction harms fair economic competition, it will not be allowed.
The Antimonopoly Superintendency may also act ex officio when it becomes aware, by any means, of a transaction that could be deemed as contrary to the fair economic competition principles provided for in the Antimonopoly Act.
In addition, the Antimonopoly Superintendency can initiate procedures against a merger within five years following consummation pursuant to formal authorisation of the competent commercial registry.
Furthermore, the new Antimonopoly Act uses very broad terms that are not clearly defined such as: ‘social equality’, ‘endogenous development aimed at the satisfaction of social needs’ and ‘a fair society’ when referring to competition, antitrust and monopoly issues. This is part of the increasing pressure that the Venezuelan government has been imposing on companies in the country. The Antimonopoly Act is part of the effort to increasingly control every aspect of the economic activities by governmental intervention.
II YEAR IN REVIEW
No noteworthy administrative or judicial decisions were made by the Antimonopoly Act, by its predecessor the Superintendency for the Promotion and Protection of Free Competition (Procompetencia) or the competent courts during 2014 and the first quarter of 2015. This can be attributed to:
- a the fact that the Superintendency has not issued the rulings of the law, and there is no legal obligation for companies entering into merger agreements to notify or to obtain prior approval of the transaction by the Antimonopoly Superintendency; and
- b the lack of transactions with significant impact in the Venezuelan economy due to the very complicated economic situation.
The Superintendency does not have publicly accessible statistics regarding its work, and it only publishes some of its decisions regarding antitrust procedures. However, most of the opinions and decisions that it issued are prior to 2013 and that did decide upon merger control procedures referred to transactions between or related to insurance, reinsurance and insurance brokerage companies.
The lack of decisions from the Antimonopoly Superintendency and the previous Procompetencia has also been attributed to an ongoing restructuring procedure within the agency, mainly with regard to its personnel, and the adoption of the Antimonopoly Act, enacted in November 2014, in substitution of the Promotion and Protection of Free Competition Act (PPFCA).
It is necessary to go back to 2006 to find examples of merger cases in which Procompetencia applied its principles and doctrine in its decisions.
In a more recent case, in 2009, two of the major chocolate companies in Venezuela, Nestlé Venezuela, SA (an affiliate of Nestlé Switzerland) and Chocolates El Rey, CA (a local producer), decided to merge. Given the size of the transaction, and the relevant market shares of both companies, to ensure the success of the merger and to avoid potential sanctions, on 17 February 2009, Nestlé de Venezuela requested Procompetencia to initiate an evaluation procedure prior to the consummation.
The transaction concerned the acquisition by Nestlé de Venezuela of between 70 and 100 per cent of the registered shares of Chocolates El Rey.
Procompetencia decided that, mainly because of the dominant position that Nestlé de Venezuela would end up acquiring, the proposed merger would cause harm to competing companies in the chocolate market.
Among the conclusions of Procompetencia that led to its decision to prohibit the proposed merger, the following stand out:
- a Nestlé is a leading global company in the food sector;
- b in Venezuela, Nestlé had a dominant position of 69 per cent of the products market for end-consumers;
- c although their opinions were not binding, 26 other competitors were consulted, and 58 per cent of them were against the operation;
- d the increase in production capacity of the combined entity could harm smaller competitors; and
- e the combined entity could end up excluding some smaller competitors or preventing access to the relevant market, thus affecting free competition according to the PPFCA (which was the equivalent to the fair economic competition now in the Antimonopoly Act).
An example of the application of merger procedures for a transaction involving regulated companies operating in especially regulated sectors (in this case, the telecoms sector) occurred in 2006. In such case, authorisation must be requested before the National Telecommunications Commission (Conatel).
The party requesting authorisation (Corporación Digitel, CA) wanted to merge with three other minor competitors in the mobile carriers market (Infonet Redes de Información, CA, Digital Celular GSM and Digicel, CA) to reach the national market. Conatel requested the opinion of Procompetencia on the matter.
Procompetencia considered the proposed operation to be favourable for the relevant markets, free competition and consumers, given the fact that two other competitors in the market had large market shares and no dominant position would be reached by the resulting entity. The proposed merger was authorised with the imposition of several public service obligations on the absorbing entity, given the market gains it stood to gain.
III THE MERGER CONTROL REGIME
As a general rule, merger control is contemplated in Article 10 of the Antimonopoly Act, which prohibits operations of economic concentration when the effects of a merger are to restrict fair economic competition or produce a dominant situation in either a part or the whole of a market.
According to Regulation No. 2 of the PPFCA,2 still in force regardless of the enactment of the Antimonopoly Act, any merger, joint venture, takeover, acquisition of productive assets or other similar acts are considered to be economic concentrations, and could be subject to the jurisdiction of the Antimonopoly Superintendency.
As previously mentioned, the general rule in Venezuela is that there is no obligation on participants in a merger to notify or request pre-consummation authorisation, unless they are in an especially regulated commercial sector. That being said, as also mentioned, the regulations of the recently enacted Antimonopoly Act have not been published, and those regulations could somewhat modify this assertion.
Merger parties can, however, voluntarily notify the Antimonopoly Superintendency, and interested third parties can oppose the merger either before the relevant commercial registry or the Antimonopoly Superintendency. In addition, the Antimonopoly Superintendency can initiate a procedure ex officio to verify if the merger complies with the antitrust regulations.
Below is a brief overview of the different procedures that would invoke some type of merger review before the different competent authorities. It should be noted that there is no way to accelerate or fast track any administrative procedures in Venezuela. Therefore, the time frames given below are always referential, and the procedures can take significantly longer in practice.
i Procedures before the Antimonopoly Superintendency
In addition to conducting merger control procedures, the Antimonopoly Superintendency acts as a consultant in merger control procedures that are conducted by other competent authorities in regulated commercial sectors. The Antimonopoly Superintendency’s opinion is binding in such other procedures.
Procedures conducted directly before the Antimonopoly Superintendency
Procedures conducted directly before the Antimonopoly Superintendency can be initiated either by the parties involved in the merger, or by an interested third party or by the Agency itself.
Merger control of economic concentration operations by the Antimonopoly Superintendency is only possible when the turnover of all the companies involved in the transaction combined exceeds an amount equivalent to 120,000 tax units (currently equivalent to 21,240,000 bolivars).3 The Antimonopoly Superintendency can analyse the transaction before the transaction has taken place or during a five-year period after the formal authorisation by the competent commercial registry has been issued.
Although there are no specific time frames for a merger control procedure before the Antimonopoly Superintendency, according to legislation regarding administrative procedures, in theory it can last a maximum of six months; however, normally it would take longer. (This is the situation in practice in Venezuela.)
Unless an injunction or precautionary measure to hold the operation is issued by the Antimonopoly Superintendency, merger control proceedings do not suspend the operation. An injunction could only be issued if the Antimonopoly Superintendency has sufficient grounds to presume that fair economic competition will be violated by the transaction.
According to Article 31 of the Antimonopoly Act, a decision of the Antimonopoly Superintendency, ex officio or at the request of one of either party involved in the procedure, all of the information presented would be declared confidential.
To reduce administrative discretion in decision-making, and to achieve greater consistency in the evaluation of transactions, the Antimonopoly Superintendency should evaluate the economic concentration operation consistently with the provisions of the Guidelines for the Evaluation of Economic Concentration Operations (Guidelines) as well as with applicable international guidelines. Although these guidelines are still in force, as we have mentioned, the new regulations have not been published. There is no way of predicting if the new regulations will continue to consider the above mentioned criteria, or will decide to apply other more restrictive ones.
The Guidelines define the types of economic concentration and establish the criteria for determining whether the transaction violates free competition. Specifically, the Guidelines establish technical criteria to define, inter alia, the relevant market, the concentration in the relevant market and the possibility of entry by new participants in the market.
The Antimonopoly Superintendency analyses each transaction on a case-by-case basis. This means that it may approve mergers that potentially have restrictive effects on fair economic competition but that also carry benefits to society that outweigh the negative effects that a restriction would generate (e.g., positive changes in the production techniques, distribution or commercialisation in that specific market).
If the Antimonopoly Superintendency decides that the transaction infringes fair economic competition, the transaction may not take place. If it determines that the merger does not infringe fair economic competition, the transaction cannot subsequently be penalised.
The above information applies both to procedures initiated by the involved parties, or by interested third parties or the Antitrust Authority. However, the following are some of the differences between the two procedures.
Procedures initiated by the parties involved
Since the analysis of a transaction by the Antimonopoly Superintendency is not mandatory, the parties involved may voluntarily notify the pending merger and carry on with the operation without waiting for the decision of the Antimonopoly Superintendency unless an injunction is issued.
Each participating company must separately submit a complete and detailed request that fulfils the requirements set forth in Article 7 of Regulation No. 2, and also follow the technical considerations provided in the Instructions issued by Procompetencia.4
Procedures initiated by interested third parties or the Antimonopoly Superintendency
If an interested party considers that it will be affected by an economic combination, and demonstrates a personal, direct and legitimate interest to the Antimonopoly Superintendency, the agency will evaluate the request to decide if an investigation is required.
If the procedure is initiated ex officio by the Antimonopoly Superintendency, it must issue a reasoned administrative decision stating the commencement of the procedure. It must also notify the parties involved in the operation that it is initiating a merger control procedure.
If the merger control procedure begins post-consummation and the Antimonopoly Superintendency determines that the transaction violates the antitrust principles, it may initiate a sanctioning procedure to cause the involved companies to break up the resulting entity, and can even impose a fine. Depending on the severity of the case, fines could range between 10 and 20 per cent of the gross income in Venezuela during the previous fiscal year of the merged companies; in the case of recurrence, this could rise to 40 per cent.
The statute of limitations for breaches of the principles established in the the Antimonopoly Act is three or five years, depending on the fault. However, because economic concentration operations that are against antitrust principles do not materialise in one sole act or moment, but to the contrary are permanent and continuous, the statute of limitations period only starts after the concentration has stopped, or when its effects stop restricting fair economic competition or generating a dominant position in a part or the whole of the relevant market.
Parties interested in the annulment of an administrative order by the Antimonopoly Superintendency in a merger control proceeding can file an annulment claim before the competent administrative litigation national court within 45 days following the formal notification of such decision. A bond for the amount of the sanction for which annulment is being requested must be presented along with the annulment claim. This decision may then be appealed before the Political and Administrative Chamber of the Supreme Tribunal of Justice. In theory, trials take no longer than a year; however, in reality, it could take up to five years for the interested party to obtain a first-instance decision, and a similar amount of time to obtain a decision on appeals.
Some markets are heavily regulated due to public interests. Companies operating in these heavily regulated markets are subject to the supervision of other governmental agencies besides the Antimonopoly Superintendency.
Special legislation regulating specific markets establishes merger procedures that such companies must comply with. In some of the procedures described below, the Antimonopoly Superintendency, applying the above-mentioned criteria and regulations, will issue a binding opinion regarding the convenience of an operation.
ii Procedures before the Superintendency of Insurance Activity (Sudeaseg)
Under the provisions of the Insurance Activity Act (IAA), any merger of insurance and reinsurance companies, insurance agents, insurance brokers, as well as any other companies that conduct business related to insurance, must be previously authorised by Sudeaseg.
The IAA defines a merger as the transfer of all the assets of one company to another company. It also states that the merger may be made:
- a by the dissolution of each of the involved companies in order to transfer all the assets and constitute a new company; or
- b by incorporating one or more companies into an existing company that will absorb all the rights and obligations of the dissolved companies.
Articles 88 and 89 of the IAA precisely regulate the written request that the interested parties must file before Sudeaseg to obtain a merger authorisation. Ruling No. 138 of the former Superintendency of Insurance,5 besides accounting information and the risk management benefits of mergers in the insurance market, also provides for additional information that interested parties must submit when filing for a merger authorisation.
In addition to the request for authorisation, the parties must file the draft merger agreement for approval along with other required documents, such as the financial statements of the involved companies and the shareholding structure of the resulting company.
As in many other regulated markets, companies in this sector must obtain an authorisation to operate in the insurance market (in this case, from Sudeaseg). If a new company will be created as a result of the merger, a request for the authorisation of the operations of the new company must be filed along with the merger authorisation request before Sudeaseg. The regulating authority will then authorise both the merger and the operation of the new company in the same decision.
Given the fact that the parties require an authorisation for the merger to take place, and that even the merger agreement must be authorised, undertaking any transaction without the prior authorisation of Sudeaseg could result in a fine ranging from 5,000 tax units (currently equivalent to approximately 885,000 bolivars) to 10,000 tax units (currently equivalent to approximately 1.77 million bolivars).6
As in the Antimonopoly Act, the rule regarding public access to documents in an administrative proceeding would apply, although, given the sensitive nature of the financial and internal documents, the parties can request that such documents be kept confidential.
No specific time frame is provided for the authorisation proceeding of a merger before Sudeaseg: the generic six-month term for general administrative proceedings applies. That being said, considering that the Antimonopoly Act must also issue an opinion and that the internal operating procedures of Sudeaseg are usually quite long, this time period is certain to be closer to 12 months.
If Sudeaseg’s decision opposes the transaction, the parties may file a reconsideration motion before that same authority within 15 business days of the notification of the decision. If the reconsideration recourse is again contrary to the request of the parties, or Sudeaseg does not render a decision within 15 business days following the filing of the recourse, the parties may file a hierarchical recourse before the competent ministry (at this time, the Finance Ministry).
Instead of administrative appeals, the parties may choose to go directly before the courts at any time, as long as there is no pending term for the administrator to decide. Starting from the date of the notification of the decision, or the date in which the decision should have being rendered, the parties have 180 calendar days to file an annulment claim before the competent court.
If a decision (or the lack thereof) being appealed before the courts is a decision of Sudeaseg, the annulment claim must be filed before the competent administrative litigation national court.
If the decision was issued by the competent ministry within 90 business days of the recourse being filed (or the competent ministry failed to issue such decision), the annulment claim must be filed before the Political and Administrative Chamber of the Supreme Tribunal of Justice.
The affected party may also decide to file a claim opposing the opinion given by the Antimonopoly Superintendency.
iii Procedures before the Superintendency of Banking Institutions (Sudeban)
As provided for in the Banking Institutions Act (BIA), Sudeban controls and regulates banks’ activities, such as merger operations carried out to protect the rights of bank account holders. In addition, the merger authorisation procedure of banking institutions is regulated by Resolution No. 01-700 of the Financial Regulation Board.7
A merger between banking institutions must gain prior authorisation from Sudeban. Pursuant to Article 38 of the BIA, a bank cannot own 5 per cent or more of the capital stock, or even a smaller percentage that gives it voting power at the shareholders’ meeting of another bank, without first filing for a merger authorisation.
According to the BIA, only universal and microfinance banks may file for a merger authorisation. Said authorisation request must be submitted before Sudeban by the merging companies, and must be accompanied by a description of the financial status of the involved companies and a draft of the by-laws of the resulting company, as well as other requirements established in Article 18 of the BIA and in Resolution No. 01-700.
The merger authorisation proceeding for banking institutions is very clearly established in Resolution No. 01-700. In addition to the very specific information that has to be filed, the interested parties must publish an information notice about the merger in several newspapers. In theory, the entire proceeding, from the moment that the request is filed up to the publication of the merger authorisation in the Official Gazette, or the decision denying such authorisation is notified to the interested parties, should last between 52 and 112 business days.
If, as a result of the merger, a new bank is going to be formed, or if the surviving bank will be carrying out activities for which it was not previously authorised, the organisation and functioning authorisations required for these activities to be carried out by the resulting company must also be requested from Sudeban.
While the BIA excludes the merger of banks from the general rules contained in the Commercial Code, it contemplates those same general rules with some variations. For example, Article 18 of the BIA establishes that mergers must be approved by shareholders’ meetings of the merging companies with the presence of three-quarters of its registered shares, and the approval of at least two-thirds of the registered shares represented at the meeting.
Instead of the formal authorisation granted by the competent commercial registry, the merger of banking institutions will enter into force once the interested party files the following before the competent commercial registry:
- a the merger agreement;
- b the articles of incorporation of the surviving or new bank; and
- c the authorisation granted by Sudeban (after being published on the Official Gazette).
Such filing must take place within 30 calendar days of the publication of the authorisation.
If a bank does not comply with the authorisation procedure for mergers in any manner, it could be sanctioned with a fine that ranges between 1 and 3 per cent of its capital stock.
Regarding the confidentiality of the proceeding, the comments above regarding Sudeaseg also apply to Sudeban.
If the decision of Sudeban is contrary to the interest of the parties, they may file a reconsideration motion before that same authority within 10 business days of the notification of the decision.
If the decision of the reconsideration recourse is again contrary to the request of the parties, or Sudeban does not render a decision within 45 calendar days following the filing of the recourse, the parties may file an annulment claim before the Administrative Litigation National Court of Caracas. They may also file the annulment claim directly against the original decision from Sudeban. In any case, the period to file the annulment claim is also 45 calendar days.
iv Procedures before the National Superintendency of Securities (NSS)
The provisions of the Securities Market Act are mandatory on companies or persons involved, directly or indirectly, in activities related to the processes of issuing, custody, investment and securities brokerage. The operations of government debt securities and credit, issued under the Central Bank of Venezuela Act and the BIA, are expressly excluded.
The NSS is the authority in charge of overseeing the operations of the above-mentioned companies. Merger operations between companies under the control of the NSS must be notified to such agency prior to consummation.
Notifications are entered in the NSS registry of all of the companies involved in the market. The regulation only states that such notification must be made prior to the merger; however, there is no specific time frame in which to do so.
While in this case a possible merger only requires a notification to the competent authority, any decision by the NSS can be appealed either administratively or in the courts in the same manner described above in the case of Sudeaseg decision.
The confidentiality of the documents presented to the NSS is subject to the same regulations as those explained for Sudeaseg.
v Procedures before Conatel
Mergers between telecommunications companies regulated by Conatel are subject to its approval. Further, any change of control transaction of a company holding a concession or administrative authorisation is also subject to authorisation by Conatel.
The Telecommunications Act states that a concession or administrative authorisation to carry out telecommunications services is not transferable by the merger itself. Therefore, in addition to the request to authorise the merger, the interested parties must expressly request authorisation to transfer the concession or administrative authorisation to the new entity or surviving entity if it is different from the one that originally held the concession or administrative authorisation.
A favourable opinion by the Antimonopoly Act is also required to approve the requested merger.
There are no specific time periods specified for the proceeding to authorise mergers by Conatel; therefore, the general term of six months should in theory apply. The confidentiality of the documents submitted in such procedures is subject to the same regulations as those explained for Sudeaseg.
Decisions by Conatel regarding mergers may be appealed before its hierarchical superior, Ministry competent in Telecommunications matters, within 15 business days following the decision; or directly before the Political and Administrative Chamber of the Supreme Tribunal of Justice, within 180 days of the decision being notified.
vi Procedure before the competent commercial registry
Regardless of the authorities involved and the merger control procedures that may take place, any merger procedure has to be completed under the formal control of the competent commercial registry.
Except for companies involved in banking activities, the procedure provided in the Commercial Code for the merger of companies starts with the approval by each of the involved companies of the merger operation by a decision of their shareholders.
According to Article 280 of the Commercial Code, unless provided otherwise in the by-laws of the company, a minimum of three-quarters of the registered stocks issued by the company must be represented at the shareholders’ meeting in which the decision is made, and at least half of them should vote in favour of the merger.
A minute of the shareholder’s meeting approving the merger of every company involved in the operation must be filed with the respective competent commercial registries, along with their balance sheets, financial statements and, if applicable, any authorisation or notification that may be required.
After the commercial registries review and authorise the registration of each shareholders’ meeting minute, they are published. The merger will not be considered effective until three months have passed from the day of publication.
During that three-month period, a company’s creditors may file an opposition to the merger. This period may be avoided if the companies involved can prove that all debts have been paid or that all its creditors accept the merger.
In the event that any creditor files an opposition, the completion of the merger is suspended until the opposition is withdrawn or disregarded by a commercial judge.
In the event that no opposition to the merger is filed by any creditor of the companies involved in the operation, the resulting or surviving company acquires all the rights and obligations of the merged companies.
IV OTHER STRATEGIC CONSIDERATIONS
Coordination of merger operations with other jurisdictions depends on the importance of the business of a Venezuelan company that is the object of the transaction or party to it. However, as previously mentioned, unless the companies involved in the transaction are in a specially controlled market, no notification or authorisation is required to take place in Venezuela. This means that a merger could take place globally and no regulatory action would be required in Venezuela, unless it is evident that the merger of the local companies could restrict fair economic competition or produce a dominant situation in a part or the whole of a market.
If the Venezuelan company operates in a controlled market, any corporate change of control upstream must be examined carefully to ensure that it does not trigger a notification or authorisation request obligation in Venezuela.
V OUTLOOK and CONCLUSIONS
We do not foresee any mayor developments in the field of merger control in Venezuela, considering the critical economic situation of the country, which, along with highly restrictive economic regulations imposed by the government on the private sector, has greatly reduced commercial activities in Venezuela.
Furthermore, we are not aware of any plans to enact the regulations of the Antimonopoly Act, but it should be noted that the procedures to draft and approve such regulations would not be public, and therefore there would not be much notice before they are published.
1 Pedro Ignacio Sosa is a senior partner; Rodrigo Moncho Stefani and Mauricio Ramírez Gordon are associates at AraqueReyna.
2 Published in Official Gazette No. 35.963 dated 21 May 1996.
3 For 2016, the value of the tax unit is 177 bolivars. It should be noted that due to an unprecedented inflation rate, and the rapid depreciation of the local currency, even the smallest operations (as low as US$36,000) are subject to the abovementioned control.
4 Published in Official Gazette No. 36.209 dated 20 May 1997.
5 Published in Extraordinary Official Gazette No. 5.578 dated 14 February 2002.
6 See footnote 3.
7 Published in Extraordinary Official Gazette No. 5.480 dated 18 July 2000.