The Public Competition Enforcement Review: Argentina
On 4 February 2021, a draft bill for the amendment of certain sections of the Antitrust Law was approved by the Senate, which added certain amendments. This bill is now scheduled for discussion by the House of Representatives during its ordinary sessions in 2022.
The draft legislation establishes that the executive branch of government (the Executive Branch), with the prior recommendation of the Ministry of Productive Development, will appoint the members of the new National Competition Authority (ANAC). It also states that the latter will act under the aegis of the Secretary of Domestic Trade (instead of the Executive Branch as provided by the current Antitrust Law).
As regards the merger control system, the most significant change proposed by the draft bill is the reduction of the time in which the merger suspensory regime may enter into force in Argentina. The new bill establishes that the pre-closing system for the notification of economic concentrations will become effective 90 days after its publication in the Official Gazette without any further requirements or conditions.
In relation to the anticompetitive conduct regime, the bill proposes to eliminate the controversial and superfluous Section 29 of the current Antitrust Law, which provides the option for the Antitrust Tribunal2 to authorise the execution of agreements that may be considered restrictive of competition, provided that they are not detrimental to the general economic interest.
Finally, with regard to the leniency programme, the amended version of the draft bill, including the Senate's modifications, now proposes to eliminate the leniency programme itself. It remains to be seen whether the House of Representatives will approve or reject this amendment. At the time of writing, there have been no further developments in this regard and no indication of when the bill will be discussed by the House of Representatives.
i Prioritisation and resource allocation of enforcement authorities
The Antitrust Law provides the ANAC with several standard enforcement powers, such as:
- the ability to summon witnesses for hearings;
- the examination of books and documents;
- the issuance of requests of information to other regulators;
- the initiation of investigations ex officio; and
- the execution of dawn raids with a court order.
In 2021, the current competition authority, the National Commission for Competition Defence (the Antitrust Commission), issued a total of 64 public decisions regarding merger control; a total of 53 public decisions regarding anticompetitive conduct and 14 advisory opinions. As regards mergers, the Antitrust Commission has been expediting its review time frames since the enactment of the Antitrust Law and was able to launch its new electronic platform for mergers and advisory opinions (the TAD system) in August 2020, although most dockets were still subject to delays over the course of 2021.
ii Enforcement agenda
With regard to the enforcement agenda, there has been a greater interest in the detection and prosecution of anticompetitive conduct, with the Antitrust Commission continuing several market investigations and initiating others to determine whether anticompetitive behaviours are taking place in certain markets in the context of the health emergency. According to statements issued by the Antitrust Commission, it has reduced the review period from an average of 3.2 years to approximately six to 12 months.
i Significant cases
Cartel cases in Argentina have generally involved the following:
- the arrangement of prices or production quotas;
- the distribution of market share;
- agreements between different bidding parties in public bids; or
- the transfer of competitively sensitive information with the sole purpose of restricting competition.
In the event that an infringement is proved, the cessation of the infringing conduct will be ordered and the following fines may be imposed on perpetrators: (1) up to 30 per cent of the volume of business related to the products or services involved in the unlawful conduct committed, during the previous fiscal year, multiplied by the number of years that the conduct has lasted, which may not exceed the national consolidated volume of business registered by the parties' economic group for the previous fiscal year; or (2) up to twice the amount of the economic benefit produced by the unlawful conduct committed. In the event that both are applicable, the higher amount will be imposed as a fine. Conversely, if neither is applicable, a fine of up to 200 million adjustable units3 is possible.
Between 2000 and 2005, the Antitrust Commission showed an interest in prosecuting cartels and heavy sanctions were imposed (most notably in the cement4 and liquid oxygen5 cases), but since then cartel detection activity has been low.
The Notebooks case is a recent corruption scandal, unveiled in 2018, concerning an organised corruption scheme that involved the delivery of bribes to various people and locations, including politicians and many business people who allegedly benefited from large public contracts between 2005 and 2015. This case has been under criminal investigation since 2018.
The Antirust Commission initiated a parallel investigation into bid rigging allegations that have arisen from depositions within the frame of the criminal investigation and, in May 2019, it served notice of an ex officio investigation to the companies involved. The alleged collusive conduct involved agreements and coordination of positions or abstentions in public-works bids, tenders and auctions, in the roadworks, energy and transport sectors and infrastructure in general.
At the time of writing, there have been no major developments in this investigation.
ii Trends, developments and strategies
Per se anticompetitive practices
Under the Antitrust Law, certain collusive conduct is considered to be anticompetitive per se, and harmful to the general economic interest without requiring further analysis. Specifically, Section 2 of the Antitrust Law provides that the following are absolute restrictive behaviours:
- the setting of production or commercialisation quotas, or the restriction of these activities with the same intention;
- market, client or supply allocation; and
- bid rigging.
The inclusion of these behaviours seeks to address two main issues: the need for an efficient means of prosecuting cartels (an aim further enhanced by the creation of the leniency programme, as discussed below) and elimination of the need to resort to theories of conscious parallelism (or tacit collusion), which have been rejected by the courts.
One of the most important developments introduced by the Antitrust Law is the incorporation of a leniency programme to facilitate the prosecution of cartels. The leniency programme sets out two different scenarios for infringing parties, namely an exemption scenario and a reduction scenario, both based on a 'race-to-the-door' structure.
Parties that are not the first to apply for the leniency programme may request a reduction of the sanctions, if they are able to meet the remaining requirements and provide the Antitrust Commission with useful information for the investigation. The reduction may range from 20 to 50 per cent of the sanction. The reduction ratios are to be determined by the Antitrust Commission according to the chronological order of the filing.
The Antitrust Law also includes a 'leniency plus' provision, whereby those parties that are unable to request an exemption for anticompetitive conduct but can provide information about a second instance of anticompetitive conduct can obtain an exemption for the latter and a reduction of one-third for the former. Additionally, the Antitrust Law specifically stipulates that there cannot be joint application of the leniency programme (i.e., for the benefit of two parties), except where a company and its directors, or other members of staff, apply for the leniency programme.
Finally, the Antitrust Law stipulates that in the event of follow-on litigation regarding conduct uncovered by parties that have applied for the leniency programme, access will not be given to documents and information provided by the applicants, thus maintaining their confidentiality.
At the time of the writing, there have been no confirmed filings for leniency. Nonetheless, the amendment bill for the Antitrust Law mentioned above was modified by the Senate and now proposes abrogating the leniency programme. It remains to be seen whether this change will be accepted by the House of Representatives.
The additional tools granted to the regulator in the Antitrust Law and the renewed interest that has been shown in pursuing collusive conduct indicate that cartel enforcement is likely to be a top priority for the Antitrust Commission in the years to come. It remains to be seen how the leniency system will be implemented effectively and what results it will produce, but the legislative push towards its approval shows that cartel prosecution is once again a priority in Argentina.
Antitrust: restrictive agreements and dominance
Section 5 of the Antitrust Law states that a person has a dominant position when it is the only buyer or supplier of a given product on the market or, if not the only supplier or buyer, it lacks substantial competition or is able to determine competitors' economic feasibility because of a certain degree of vertical or horizontal integration.
Section 6 establishes three relevant factors in determining the existence of a dominant position: the degree of substitution for a product or service; the existence of regulatory barriers; and the extent to which a company can unilaterally set prices or restrict output.
Although market share is not expressly indicated in the Antitrust Law, the Antitrust Commission also considers this to be an important factor in determining the existence of a dominant position.
Section 1 of the Antitrust Law prohibits the abuse of a dominant position and Section 3 describes vertical and exclusionary practices that could be in breach of Section 1 as they are likely to cause harm to the general economic interest.
i Significant cases
On a preliminary basis, the Antitrust Commission considered that Facebook, Inc was abusing its dominant position in the market and that the updating of WhatsApp's terms of service and conditions on privacy (mandatory for its users) generated anticompetitive effects. As a result, WhatsApp's new terms and conditions policy was suspended by means of an injunction for the duration of the corresponding anticompetitive conduct investigation.
One of the Antitrust Commission's main arguments was based on the international impact this conduct was having in different jurisdictions abroad (Turkey, India, Italy, Germany and Brazil) where the digital markets have global reach. In its stated opinion, the Antitrust Commission understood that, given the high level of market penetration of in Argentina, Facebook holds a dominant position in the digital platform market through its social networks Facebook and Instagram, and through the WhatsApp messaging platform. In addition, the Antitrust Commission analysed the relevant market in the context of the economic structure of digital technologies generating concepts within a digital economy, and market structures characterised by the presence of online platforms with two or more networks.
This case demonstrates that an investigation into possible anticompetitive practices in digital markets initiated in one jurisdiction may be replicated in others, producing a snowball effect. The global presence of digital markets not only serves as regulatory inspiration but also allows us to anticipate cases that could arise before the authorities in Latin America. In this respect, the Facebook–WhatsApp case has provided Argentina with a modern precedent whereby its Antitrust Law is tested by the types of competition issues that will be presented by digital platforms.
The Antitrust Commission imposed a fine and behavioural measures on Quilmes for its exclusionary abuse of dominant position as the leading company in the beer distribution and commercialisation market. Quilmes developed a set of loyalty strategies seeking to generate exclusive spaces for the retail sale of beers in the on-premise channel (restaurants, bars) and off-premise channel (supermarkets, self-service) to achieve vertical closure of the market for current and potential competitors.
In particular, the brewer negotiated the exclusive sale of its beers and other products in bars, restaurants and other premises in exchange for discounts on its portfolio of products, including beers and other non-alcoholic drinks brands. It also secured exclusivity by providing the on-premise retailers with furniture and umbrellas branded with its various beer products and by supplying other promotional materials, the Commission said. With regard to the off-premise retail channels, mainly supermarkets, the authority found Quilmes negotiated exclusivity and preferential treatment in the display of its products in exchange for discounts and promotions. The brewer further demanded preferential display in fridges at both on-premise and off-premise retailers. Furthermore, ABI, the international company that owns Quilmes, was at that time planning on acquiring SABMiller, a competitor in the market, which as a result reinforced Quilmes' dominant position consisting in a market share of more than 70 per cent of the beer production and distribution market.
The evidence produced by the Antitrust Commission and the parties led the Commission to identify the following set of loyalty devices:
- exclusive sale in exchange for advertising contracts, furniture and discounts in the off-premise channel;
- sale of portfolio products with progressive discounts applying to different products in the on-premise channel;
- discounts and benefits in the off-premise channel, mainly in hypermarkets, supermarkets and large warehouses in exchange for spaces in gondolas and leading shelf-edge positioning; and
- exclusivity in the use of refrigerators in the on-premise and off-premise segments.
In addition, in this case, the Commission cited international jurisprudence from other jurisdictions, including Uruguay, Brazil, Mexico, Greece, the Dominican Republic, Chile and Mexico, as the Argentine beer distribution market shares structures and features with markets abroad where similar conduct had also been sanctioned by antitrust authorities, thus allowing a comprehensive analysis of the matter.
Furthermore, the authority found that the anticompetitive conduct under investigation had been both continuous and ongoing for several years. As a result (i.e., regardless of whether the conduct had started more than five years previously), the action taken against these practices, and the sanctions applied, were not subject to statutes of limitation. Another interesting aspect of this case was the application of the principle of the 'most benign' applicable law, whereby the former Antitrust Law was used rather than the current Antitrust Law, and the economic fine of 150 million pesos reflected the significantly lower values of the former Law.
Finally, it is noteworthy that the Antitrust Commission implemented corrective measures as an innovative form of sanctioning. The fact that the authority took a hands-on approach, with direct and decisive behavioural measures to guarantee the cessation of Quilmes' anticompetitive practices, is the most important, and precedential, element in this case. These measures included the following:
- Quilmes must not establish any commercial agreement that has the purpose or effect of generating vertical restrictions on the marketing channels;
- Quilmes must maintain a marketing strategy for its beer brands independently from the rest of the beverages it distributes;
- Quilmes exclusive advertising and promotion agreements for its best beer brands must meet certain conditions; and
- Quilmes must inform all its sales outlets of the new marketing conditions.
The Antitrust Commission's decision was challenged by Quilmes and at the time of writing the outcome of this appeal has yet to be decided.
ii Trends, developments and strategies
The current Antitrust Law has not introduced any major amendments to the former Law regarding abuse of dominant position and, notably, no abuse of dominant conduct is included in the Antitrust Law's list of per se prohibited practices.
Furthermore, in May 2019, the Antitrust Commission published the Guidelines for the Analysis of Cases of Abuse of Dominance, which aim to provide guidance as to the practices that constitute infringements of the Antitrust Law, and to contribute to predictability in decision-making, notwithstanding the Law's application on a case-by-case basis and the use of complementary criteria that may be developed in the future. These guidelines refer only to unilateral exclusionary abuses, which are the abuses considered most frequently in comparative jurisprudence.
The guidelines set out the criteria that conduct must meet to be considered an abuse of dominance: (1) the person or undertaking must hold a dominant position in a specific market; (2) the alleged conduct must represent an abuse of that dominant position; and (3) the conduct may cause harm to the general economic interest.
In an unusual departure, the guidelines also include a detailed description of the anticompetitive conduct of abusive pricing.
The Quilmes case mentioned above is one of the most significant abuse of dominance decisions of the past few years and may prove to be the shape of things to come when analysing the actions of dominant undertakings.
Sectoral competition: market investigations and regulated industries
Before the enactment of the Antitrust Law in 1999, interaction between the Antitrust Commission and the sectoral regulators was rare. That changed with the enactment of the Antitrust Law, which expressly made all sectors subject to its rules. Specifically, Section 82 states that the only relevant legislation regarding mergers is the Antitrust Law and its Regulatory Decree.
Additionally, Section 17 of the Antitrust Law is specifically applicable to mergers in regulated sectors. This provision states that the Antitrust Commission must obtain from the relevant regulator an opinion regarding the impact of a transaction on competition or its compliance with the applicable regulatory framework.
i Significant cases
In 2021, the Commission conducted an investigation into warehousing and cargo logistics at airport terminals.6 Following its analysis, the Antitrust Commission recommended that the Regulatory Agency of the National Airport System (ORSNA) evaluate the potential benefits of siting multiple cargo terminals within Argentina's international airport to encourage competition. As a provision against this recommendation being disregarded and a monopolistic stance being maintained, the Commission also recommended the implementation of regulations regarding the processing, setting, modification and approval of tariffs charged for airline services, and also fiscal deposits, quality standard controls and ORSNA's functions and obligations in respect of each these. It remains to be seen whether the Commission's recommendations will be implemented.
ii Trends, developments and strategies
On 28 January 2021, the Domestic Trade Secretary issued Resolution No. 110/2021, identifying the products that fall within the scope of the Supermarket Shelf Space Bill,7 and including dairy foods and refrigerated foods (except meat, fish and seafood); frozen food; fruit and vegetables; non-alcoholic and alcoholic beverages; perfume; cleaning products; and pet food and accessories.
What the Antitrust Commission's role in the enforcement of this law will be remains to be seen.
The Antitrust Commission has shown substantial interest in the retail sector, which is evidenced by its supermarket investigation, leading to the approval of the Supermarket Shelf Space Bill; possible further Antitrust Commission involvement cannot be ruled out. Given current inflationary rates and the different measures undertaken by the Executive Branch because of covid-19, it is likely that the Antitrust Commission will remain focused on these markets.
There are no state aid laws or regulations in Argentina, nor does the Antitrust Commission consider issues of this kind.
According to the Antitrust Law, certain transactions are deemed to be economic concentrations when they result in the assumption of control of one or more companies by means of any of the following acts:
- transfer of businesses;
- acquisition of shares or equity interests, any interest thereto and convertible debt securities or securities that grant the acquirer control of, or a substantial influence over, the issuer; and
- any other agreement or act through which assets of a company are transferred to a person or economic group, or which gives decision-making control over the ordinary or extraordinary management decisions of a company.
Those economic concentrations require approval if the aggregate volume of business of the companies involved in the transaction exceeds 100 million adjustable units in Argentina. Note that all the amounts stipulated by the Antitrust Law will now be in adjustable units and subject to review on an annual basis. The current value was set at 83.45 Argentine pesos in Resolution No. 35/2022 issued by the Domestic Trade Secretary on 2 February 2022.
It mandatory for economic concentrations that fall within this definition to be notified to the Antitrust Commission for clearance.
At the time of writing, post-closing notification is mandatory, whereby notice must be delivered prior to or within seven calendar days of the closing of the transaction or the publication of any cash tender or exchange offer.
If a decision is not issued within 45 business days of the filing of an application and relevant documents, the transaction shall be considered tacitly approved. However, the current average review time frame is between nine and 12 months, even in non-material transactions, because of a stop-the-clock interpretation by the Antitrust Commission. The Commission considers that the first request for information stops the 45-business-day term until it has obtained all answers necessary for the issuance of its decision. The Antitrust Law, provides for a summary proceeding (fast-track) for certain concentrations, for which the review time frame for approval is approximately three months.
The following transactions are exempt from the notification requirement:
- the acquisition of companies in which the purchaser already holds more than 50 per cent of the shares (understood as already holding exclusive control);
- the acquisition of bonds, debentures, non-voting shares or debt securities;
- the acquisition of only one company by only one foreign company that has no assets or shares of other companies in Argentina;
- the acquisition of wound-up and liquidated companies (which performed no activities in Argentina during the preceding calendar year); and
- the acquisition of companies if the total local assets of the acquired company and the local amount of the transaction each do not exceed 20 million adjustable units (however, the exemption would not apply if any of the companies concerned were involved in economic concentrations with an aggregate value of 20 million adjustable units in a relevant market in the past 12 months or 60 million adjustable units in the past 36 months).
If the parties do not comply with this requirement, they will be subject to fines of up to 0.1 per cent of the national consolidated volume of business for each day they fail to comply. If this method of calculation of the fine is not feasible, then the fine shall be an amount of up to 750,000 adjustable units, approximately 62.6 million pesos, per day of delay.
Section 9 of the Antitrust Law states that any transaction subject to control by the Antitrust Commission has no legal effects in relation to the parties involved or towards any third party until it is approved by the Antitrust Commission, either expressly or tacitly.
i Significant cases
The year 2021 was characterised by the issuance of a series of statements of objection for certain complex transactions. Resolutions of this kind are aimed at finding a solution to the Commission's competition concerns in certain markets and it first introduced them as a tool in merger control proceedings in 2021 (except in the case of Disney/Fox, which, technically, was issued in late 2020). In total, four statements of objection were issued.
Mirgor acquired 100 per cent of the operations of Brightstar Argentina and Brightstar Fueguina.8 The main activity of both companies is the manufacture and sale of mobile phones.
The Commission argued that if the transaction were approved, the number of companies in the mobile phone production and marketing market would be reduced from three to two and that Mirgor would consolidate itself as the leading manufacturer with 58 per cent of the production and marketing of mobile devices, 51 per cent of the maximum authorised production capacity, and as the supplier company for almost 100 per cent of Samsung brand mobile phones in Argentina.
The case was effectively closed once the notifying parties submitted a remedy proposal offering the following commitments:9 (1) not to engage in price discrimination in relation to the other market participants; (2) not to make the sale of mobile phones or their accessories conditional on the acquisition of different products manufactured or commercialised by the parties or Mirgor; (3) not to refuse particular purchase orders for mobile phones from wholesale buyers (as long as the purchase orders were in accordance with market conditions); and (4) to guarantee public announcement of the proposed remedy measures.
Nevertheless, the Commission considered these commitments insufficient to dispel competition concerns and established supplementary measures requiring Mirgor to report to the Antitrust Commission on its compliance status on a six-monthly basis by providing the following information: (1) in the wholesale market, average prices, total sales volume and monthly sales; (2) in the retail market, average prices, total sales volume and monthly sales; and (3) conclusion of any agreement or contract, on the company's own account or through subsidiaries, involving the manufacture of mobile phones on a national or international brand scale. In addition, Mirgor must implement, within a 90-day term, an antitrust training programme for the company's directors and personnel. Finally, the Commission imposed on the parties the obligation to refrain from increasing their margins in the retail segment through unilateral increases in wholesale prices and to guarantee the maintenance and development of both human and production resources incorporated as a result of the transaction.
Remedy compliance monitoring is currently ongoing for this case.
Internationally, Syngenta Crop Protection AG acquired the seed business of Cofco International Protection AG.10 Thus, in Argentina, Syngenta controlled Nidera Seeds Argentina SAU.
In this case, the Antitrust Commission argued that, in Argentina, Syngenta is the leading company in research and development, production and marketing of sunflower seeds, and Nidera is the second. If the transaction were approved, the merged companies would have a market share in excess of 60 per cent. Furthermore, the Commission analysed the Herfindahl-Hirschman Index (HHI) ex ante and ex post. The ex ante HHI amounted to 2,662 and the ex post to 4,240. This would entail a variation of 1,578 points.
Discussions are currently being held to consider remedies in this case.
The Walt Disney Company acquired exclusive control over 21st Century Fox, Inc, including Fox's television and film studios, cable entertainment networks and international television businesses.11 According to the Antitrust Commission, the operation concentrates two groups of pay television channels, of which the sports channels stand out: ESPN and Fox Sports.
As regards market share, the transaction resulted in the merged company owning seven of the nine basic sports channels available and almost two-thirds of the total sports channels, in addition to the Fox Sports Premium subscription channel. Also, the number of competitors would decrease from three to two as a result of the transaction, giving the company a market share of around 64 per cent of the basic pay television sports channels. Moreover, with an ex post HHI value of 5,166, the points variation would be greater than 2,000.
Discussions are currently being held to consider remedies in this case.
This economic concentration involved the merger between Linde AG and Praxair INC in the newly constituted enterprise Linde plc.12 The transaction was undertaken at a global level but had effects in Argentina.
According to the Antitrust Commission, if the transaction was approved the merging companies would own 50 per cent of gas production within the gas market, including the industrial and medical segments. As a result, the Commission assessed the possible risk of unilateral effects since a dominant position was being acquired and further enhanced. In this context, the Commission also considered the probability of future collusive agreements arising because of this dominant position. As a result, in 30 of the 34 markets defined, the combination raised concerns by creating a company with the ability to set the prices of its products and services in a unilateral or coordinated manner.
Discussions are currently being held to consider remedies in this case.
ii Trends, developments and strategies
The Antitrust Law provides for a fast-track system for those transactions that do not present competition concerns. However, a regulatory regime for this system has not been implemented yet.
Finally, the merger control system under the updated Antitrust Law also includes a mechanism for third parties to file their comments on a merger, although these are not binding for the Antitrust Commission, nor is there an obligation for the Commission provide a response.
Following the enactment of the new Antitrust Law in 2018, the complete overhaul of the merger control system helped the regulator steer away from the slow and cumbersome review process it had employed for more than a decade, significantly improving results during 2020, despite the effects of the global pandemic. It remains to be seen how the new president and roster of members at the Antitrust Commission will handle proceedings and whether the proposed system for suspending transactions will be implemented soon.
Furthermore, the Antitrust Commission previously issued draft Guidelines for the Concept of Merger Notification and a final version is expected to be published in 2022.
i Pending legislation
The updated Antitrust Law has already addressed several of the most significant shortcomings in antitrust enforcement in Argentina. However, with the creation of the ANAC having been delayed, the introduction of the pre-closing notification system has also been delayed and therefore the new Antitrust Law's most significant changes have yet to be implemented. If the draft bill (discussed in Section I) is passed during 2022, effective progress will be made towards the creation of the ANAC and the implementation of the merger control suspensory regime.
Looking ahead, one of the key issues has to be whether the draft bill to amend the Antitrust Law will be approved by Congress during the 2022 ordinary sessions, as this will have a direct effect on merger notifications.
1 Miguel del Pino and Santiago del Río are partners at Marval, O'Farrell & Mairal. The authors would like to thank Franco Nigro, Eugenia Sánchez and Pilar Moreyra for their assistance on this chapter.
2 The Tribunal is provided for in the Antitrust Law, to operate under the aegis of the National Competition Authority, both of which have yet to be established.
3 The monetary coefficient defined in Article 85 of Law No. 27,442, and set at 83.45 Argentine pesos as at February 2022; see also Section VI.
4 Opinion No. 513 of the Antitrust Commission dated 25 July 2005.
5 Opinion No. 510 of the Antitrust Commission dated 8 July 2005.
8 Resolution No. 662 of the Trade Secretary dated 28 June 2021.
9 Resolution No. 1065 of the Trade Secretary dated 7 December 2021.
10 Resolution No. 488 of the Trade Secretary dated 13 May 2021.
11 Resolution No. 524 of the Trade Secretary dated 9 November 2020.
12 Opinion No. 92994908 of the National Antitrust Commission dated 30 September 2021.