The Public Competition Enforcement Review: Argentina
On 24 May 2018, the National Congress enacted a new Antitrust Law,2 which introduced significant changes to antitrust enforcement in Argentina.
The Antitrust Law created a new decentralised and autarchic antitrust authority within the Executive Branch: the National Competition Authority. However, until the appointment of the members of the new antitrust authority, the existing double-tier system comprising the Antitrust Commission and the Secretary of Domestic Trade will remain in force. The National Competition Authority will include three divisions: the Antitrust Tribunal, the Anticompetitive Conduct Secretariat and the Merger Control Secretariat.3 At the time of writing, the National Competition Authority has not been created yet.
The current Antitrust Law sets out that the enforcement authority's members will be appointed by the Executive Power after a pre-selection process carried out by a qualified jury composed of the Ministry of Productive Development, the National Treasury Procurer and members of the legislative branch, a representative of the National Academy of Law and a representative of the Argentine Association of Political Economy.
The Antitrust Tribunal will be composed of five members. The roster of the new authority will include at least two economists and two attorneys. The Tribunal will be in charge of imposing the sanctions established in the Antitrust Law, resolving preliminary defences, deciding on the approval of mergers and carrying out market investigations that may be deemed pertinent.
For its part, the Merger Control Secretariat will have as its main objective the receiving and processing of advisory opinions and merger dockets that are filed before the authority. Furthermore, it will have the authority to decide on the approval of mergers that qualify for a fast-track review process, the requirements of which will be determined by the Antitrust Tribunal.
Finally, the Anticompetitive Conduct Secretariat will be created with the purpose of receiving and processing investigations on anticompetitive conduct in order to provide recommendations to the Antitrust Tribunal regarding the sanctions that would have to be applied.
On 30 November 2020, a Draft Bill for the amendment of certain sections of the Antitrust Law was included within the set of bills to be addressed by the Argentine National Congress in its extraordinary sessions, scheduled to take place between 4 January 2021 and 28 February 2021. The Draft Bill includes several relevant changes to the structure of the National Competition Authority and both in the merger control and the anticompetitive conduct regimes. On 4 February 2021, the Draft Bill was approved by the Senate, which added certain amendments. This amended Bill is expected to be discussed by the House of Representatives during its ordinary sessions of 2021.
One of the key amendments proposed by the Draft Bill is the elimination of the procedure provided for the appointment of the members of the National Competition Authority described above. The draft legislation establishes that the Executive Power, with the prior recommendation by the Ministry of Productive Development, will appoint the members of the National Competition Authority. It also states that the latter will act under the scope 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 the Draft Bill proposes is the reduction of the time in which the suspensive regime may enter into force in Argentina. The new Draft 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. The latter provided the possibility that the Antitrust Tribunal could authorise the execution of agreements that may be considered restrictive of competition if they are not detrimental to the general economic interest.
Finally, as regards 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.
i Prioritisation and resource allocation of enforcement authorities
The Antitrust Law provides the National Competition Authority with several standard enforcement powers, such as:
- the ability to summon witnesses for hearings;
- examination of books and documents;
- the issuance of requests of information to other regulators;
- the initiation of investigations ex professo; and
- the execution of dawn raids with a court order.
During 2019, the Antitrust Commission focused its analysis on abuse of dominance and cartel investigations. In particular, the Antitrust Commission initiated an ex officio major investigation related to a corruption scandal that took place in Argentina, known as the Notebooks case.
In 2020, following the covid-19 outbreak in Argentina, the Antitrust Commission has mainly been involved in market investigations. In the context of the health emergency, the Executive Power set out maximum prices for more than 2,300 food and personal health products. In several markets in which prices were increased beyond the established maximum price (such as the liquid medicinal oxygen,4 beef5 and medicine markets6) the Secretary of Domestic Trade ordered the Antitrust Commission to initiate market investigations into whether the increases were the result of illegal practices and possible infractions of the Antitrust Law. So far, the Antitrust Commission has not issued any public decisions in this regard.
As regards merger control proceedings, the Antitrust Commission has been accelerating its review time frame for merger control cases since the enactment of the Antitrust Law. However, as a result of the national lockdown ordered by the Executive Power in view of the covid-19 crisis, procedural terms of the proceedings before the Commission were suspended from March until the end of October 2020. Thus, even though the Antitrust Commission was able to launch its new electronic platform for mergers and advisory opinions (the TAD system) in August, most dockets experienced delays.
ii Enforcement agenda
The enforcement agenda of the Antitrust Commission can be summarised as follows:
- Since December 2019 when a new government took office, the Antitrust Commission has appointed three new commissioners along with its new president, Rodrigo Luchinsky.
- The appointment of the members of the National Competition Authority was expected to occur during 2020. Now, it remains to be seen whether the Draft Bill that amends the Antitrust Law is analysed and approved by the National Congress. If so, the Executive Power, with the prior recommendation of the Ministry of Productive Development, will be responsible for the appointment of the members of the National Competition Authority in 2021.
- In August 2020, the Antitrust Commission was able to launch its new electronic platform for mergers and advisory opinions (the TAD system).
- There has been a greater interest in the detecting and prosecuting of anticompetitive conduct. In that regard, as will be analysed below, the Antitrust Commission has continued several market investigations and initiated some others with the intent of determining whether there are any anticompetitive actions taking place in such markets in the context of the health emergency.
- The elimination of the cumbersome merger control review methods that had taken place prior to 2016 by using a more practical approach regarding transactions under analysis, especially with regard to non-material cases. Pursuant to the statements of the Antitrust Commission, it reduced the review period from an average of 3.2 years to approximately six to 12 months. However, this time frame increased as a result of the global pandemic.
i Significant cases
Cartel cases in Argentina have generally involved the following:
- the arrangement of prices or production quotas;
- the distribution of market shares;
- agreements between different bidding parties in public bids; or
- the transfer of competitively sensitive information with the sole purpose of restricting competition.
According to the Antitrust Law, in the event that an infringement is proved, the cessation of the infringing conduct will be ordered and a fine could be imposed on the perpetrators that can be of: (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 last 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 economic group of the parties during the last fiscal year; or (2) up to twice the economic benefit produced by the unlawful conduct committed. In the event both of them are applicable, the highest amount will be imposed. On the contrary, if none of them is applicable, the fine could be of up to 200 million adjustable units, as will be analysed below.
Between 2000 and 2005, the Antitrust Commission showed an interest in prosecuting cartels and heavy sanctions were imposed (most notably in the cement7 and liquid oxygen8 cases), but from thereon until recently, cartel detection activity has been low.
The Notebooks case is a recent corruption scandal that was unveiled in 2018 entailing an organised corruption scheme, which included the delivery of bribes to several 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 on bid-rigging allegations that have arisen from the depositions within the frame of the criminal investigation and served notice to the involved companies of an ex officio investigation in May 2019. The alleged collusive conduct entailed the agreement, coordination of positions or abstention in bid, tenders or auctions referring to public works, in the sectors of roadworks, energy, transport and infrastructure in general.
At the time of writing, there were no major developments in this investigation mainly because of the suspension of procedural terms as a result of covid-19.
ii Trends, developments and strategies
Per se anticompetitive practices
Under the Antitrust Law certain collusive conducts are considered as anticompetitive per se, and harmful to the general economic interest without 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 said activities with the same intention;
- market, client or supply allocation; and
The Antitrust Law sets out that these types of conducts will be deemed as anticompetitive, and thus will be considered null.
This inclusion seeks to address two main issues: the lack of an efficient prosecution of cartels (which is further enhanced by the creation of the leniency programme, as analysed below) and the elimination of having to resort to conscious parallelism theories that have been rejected by the courts.
Furthermore, the Antitrust Commission has issued new guidelines for the prevention of anticompetitive acts by business associations, chambers and professional associations. This reflects the growing interest of the Antitrust Commission in the activities carried out by these groups, which have often been the facilitating vehicle for the commission of anticompetitive conduct. In 2017, the Antitrust Commission had issued guidelines in this regard within a resolution regarding market investigation on milk. However, in 2018, the Antitrust Commission released specific guidelines that deal with: (1) measures and recommendations on price-fixing and market allocation; (2) exchange of information between competitors; (3) measures on the entry and exit of members; (4) measures on standardisation; (5) measures on publicity; and (6) recommended practices.
One of the most important developments introduced by the Antitrust Law is the incorporation of a leniency programme in order to facilitate the prosecution of cartels. The Antitrust Law now incorporates a leniency programme, setting out two different scenarios for infringing parties, namely an exemption scenario and a reduction scenario, both based on a 'race-to-the-door' structure.
Pursuant to the Antitrust Law, infringing parties must comply with the following requirements to obtain an exemption from the sanctions set out therein:
- they must be the first party, among the participants of the conduct, that provides the Antitrust Commission with information and evidence, either in the event that the Antitrust Commission has not initiated an investigation, or if it has initiated an investigation but has not been able to gather sufficient evidence;
- they must immediately cease the performance of the infringing conduct, unless the Antitrust Commission requests otherwise in order for it to be able to continue an investigation;
- they must collaborate until the end of the investigation; and
- they must not destroy, forge or hide evidence of the anticompetitive conduct, nor make public the fact that they have filed for the leniency programme, unless this communication is to another antitrust regulator.
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 by taking into account the chronological order of the filing.
The Antitrust Law also includes a 'leniency plus' provision, by means of which those parties that would not be able to request an exemption regarding anticompetitive conduct, but that could provide information on a second instance of anticompetitive conduct, can obtain an exemption on the latter, and a one-third reduction in the former. Additionally, the Antitrust Law specifically sets out that there cannot be a joint enforcement by two parties of the leniency programme, the sole exception being if a company and its directors or other members of its staff request the enforcement of the leniency programme.
Finally, the Antitrust Law sets outs that in the event of follow-on litigation regarding conduct uncovered by parties that have applied for the leniency programme, there will be no access to the documents or information provided by the applicants, safekeeping their confidentiality.
As of the time of the writing, there is no confirmation of any filing for leniency. Nonetheless, it is worth noting that the Bill for the amendment of the Antitrust Law mentioned in the overview section was modified by the Senate and now proposes the derogation of the leniency programme. It remains to be seen whether this change will be accepted by the House of Representatives.
The renewed interest in pursuing collusive conducts, in addition to the greater tools granted to the regulator in the Antitrust Law, show that it is quite likely that cartel enforcement will be a top priority for the Antitrust Commission in the years to come. It remains to be seen how the leniency system will be effectively implemented and what its results will be, 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 sets out that a person has a dominant position when it is the only buyer or supplier of a given product within the market or when, without being the only supplier or buyer, it lacks substantial competition or it is able to determine the economic feasibility of competitors because of a certain vertical or horizontal degree of integration.
Section 6 establishes three relevant factors to determine 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.
Despite not being expressly indicated in the Antitrust Law, the Antitrust Commission also considers market share to be an important factor in determining whether there is a dominant position.
Section 1 of the Antitrust Law prohibits the abuse of a dominant position. Section 3, on the other hand, describes some vertical and exclusionary practices that could violate Section 1 as they are likely to cause harm to the general economic interest.
Since the beginning of the 1980s, antitrust authorities have been investigating different types of abuse of dominant position. Additionally, in the view of antitrust authorities, a dominant position may be abused by committing different anticompetitive conduct such as predatory pricing, fixing retail prices, tied-in sales, blocking access to essential facilities and discriminating prices; however, no significant sanctions were imposed until 1995, when a local petroleum company received a significant sanction for abuse of its dominant position by having discriminating prices in the liquid gas market. This would also be the case for which, years later, a sentence would be issued within the framework of private litigation.
i Significant cases
Argentine Society of Music Authors and Composers case9
The Argentine Hotel and Gastronomy Business Federation filed a complaint against the Argentine Society of Music Authors and Composers (SADAIC) for allegedly charging an abusive fixed price that consisted in a percentage of the companies' turnover under the notion of unifying the collection of certain compensations. It further stated that SADAIC was eliminating all possibilities of negotiation, option or choice and that under said argument it charged fixed prices that would not exist in regular market conditions.
The Antitrust Commission considered that SADAIC had a monopoly regarding the granting of authorisations for the playing of music in hotels and that it had abused its position of dominance, imposing excessively high, unreasonable and discriminatory fees. Therefore, it decided to impose a fine on SADAIC and to issue a recommendation to the public entities in charge of the supervision of SADAIC's activities in order to adjust its conduct with regard to hotels and similar establishments (such as restaurants).
On 20 August 2019, the Federal Civil and Commercial Court of Appeals (the Court of Appeals) overruled this resolution and reversed the sanctions imposed by the Secretary of Trade, but maintained the recommendations for the Executive Branch. The Court of Appeals concluded that one of the purposes of antitrust regulations is to indirectly protect consumer welfare, by sanctioning practices that affect competition. Finally, it criticised the fact that the Secretary of Trade had not ordered the termination of the conduct, nor established what the tariffs or equilibrium prices should be, but rather limited itself to determining a sanction and issuing recommendations to the Executive Branch.
It is not the first time that the Court of Appeals has limited the powers of the National Antitrust Commission. It remains to be seen how the Supreme Court will resolve the extraordinary appeal filed by the national government on 6 September 2019. At the time of writing, there were no developments in this regard.
ii Trends, developments and strategies
The Antitrust Law has not brought forward any major amendments to the former Antitrust Law regarding abuse of dominant position. Furthermore, it must be noted that no abuse of dominant conduct is listed under the 'per se' prohibited practices of the Antitrust Law.
The Civil and Commercial Code includes a provision regarding the prohibition of abuse of dominant position, but does not provide a definition of what should be understood by 'abuse of dominant position'. Thus, a judge would have to resort to Section 5 of the Antitrust Law in order to accurately define whether the conduct under consideration is, in fact, an abuse of dominant position.
The inclusion of the concept of abuse of dominant position could also help the prosecution of those types of cases by courts without the intervention of the Antitrust Commission. Under this new scenario, courts would be able to prosecute these cases without the intervention of said regulator. At the time of writing, we are not aware of any case on these terms.
Furthermore, the Antitrust Commission published the Guidelines for the Analysis of Cases of Abuse of Dominance in May 2019. The aim of this document is to provide guidelines regarding practices that constitute infringements of the Antitrust Law and to contribute to predictability in decision-making, notwithstanding its 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 most frequent in comparative jurisprudence.
The guidelines set the requirements that a conduct must fulfilled to be considered as an abuse of dominance: (1) the person or undertaking has to 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.
As a novelty, these guidelines include a detailed description of the anticompetitive conduct of abusive pricing.
In 2019, the Antitrust Commission focused its analysis on abusive pricing, which entails significant challenges in a country with an economy with high inflationary rates, and this will surely remain one of the priorities of the Antitrust Commission. The outcome of the Argentine Society of Music Authors and Composers case will most likely show the rules under which the Antitrust Commission will analyse matters in the future.
In 2020, the Antitrust Commission has not issued any other relevant opinions regarding abuse of dominance. However, there are significant cases currently under investigation that are expected to be concluded in 2021.
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, since the Law expressly made all sectors subject to its rules. Specifically, Section 82 rules that the only relevant legislation regarding mergers is the Antitrust Law and its Regulatory Decree.
Additionally, Section 17 of the Antitrust Law is a specific rule that applies to mergers in regulated sectors. Said rule states that the Antitrust Commission must require an opinion from the relevant regulator on a transaction concerning its impact on competition or its compliance with the applicable regulatory framework.
i Significant cases
In the past, market investigations have not led to major cartel or dominance cases, since in most cases no final decisions or opinions were issued. As a reference, over the course of 2014, four major investigations were initiated against over 250 companies on a wide range of markets, yet only one cartel investigation arose (in the pharmaceutical industry), of which results are yet to be seen.
When the former administration entered office, it announced several investigations would be initiated in the following markets: aluminium; steel, petrochemical products, mobile communications, credit cards and electronic payment, edible oil, milk, meat, detergents, local bus transportation, air transportation, supermarkets and construction products.
In 2019, the Antitrust Commission issued its opinion on the supermarket investigation. Pursuant to its findings, there were certain practices in the commercial relationship between large supermarket chains and their suppliers that could affect competition in the market. The Commission also remarked that it was important that the conditions for the marketing of exhibition space should be transparent to the parties involved and offered to all suppliers on a non-discriminatory basis. Thus, the Antitrust Commission recommended the Secretary of Trade to establish a code of good commercial practice between supermarket chains and their suppliers, with the aim of promoting competition, based on a series of general guidelines; and also (1) encourage the adhesion of supermarkets and leading suppliers to the code; and (2) design a follow-up mechanism to monitor the effectiveness of the code and promote relevant modifications in the future.
Finally, in 2020, the Executive Power set out maximum prices for more than 2,300 food and personal health products, as discussed above.
ii Trends, developments and strategies
As a result of the supermarket investigation, the considerations of the Antitrust Commission were reflected in the text of the Supermarket Shelf Space Bill,10 which was approved by the House of Representatives on 20 November 2019 and later by the Senate in February 2020.
The objective of this law is in line with the Antitrust Commission's view on controlling and regulating relations between supermarkets and suppliers. It aims to make the price of certain products transparent and competitive, while seeking to maintain harmony and balance among economic agents through a series of measures involving the promotion of a number of product categories of companies that meet certain requirements, as well as the implementation of restrictions on the use of exhibition space on the shelves.
On 28 January 2021, the Secretary of Domestic Trade issued Resolution No. 110/2021, which contained the products within the scope of this law, including:
- dairy foods and refrigerated foods (except meat, fish and seafood);
- frozen food;
- fruits and vegetables;
- non-alcoholic beverages;
- alcoholic beverages;
- cleaning products; and
- pet food and accessories.
Considering the relevant contribution made by the Antitrust Commission through the supermarket market investigation, it remains to be seen what the involvement of the Antitrust Commission will be as regards the enforcement of this law.
The Antitrust Commission has shown substantial interest in retail, which is evidenced by the supermarket investigation, leading to the approval of the Supermarket Shelf Space Bill. Possible further Antitrust Commission involvement remains to be seen. Given current inflationary rates and the different measures undertaken by the Executive Power as a result of covid-19, it is quite 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 analyse these issues.
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, 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. Please note that all the amounts set out by the Antitrust Law will now be fixed in adjustable units, which will be adjusted on an annual basis. The current value is 55.29 Argentine pesos according to Resolution No. 151/2021 issued by the Secretary of Domestic Trade on 22 February 2021. The volume of business is defined as the combined gross sales of products or services of the target and the buyer during the preceding fiscal year arising from their ordinary businesses, net of discount sales, value added tax and other taxes directly related to the volume of business.
Economic concentrations that fall within this definition must be mandatorily notified to the Antitrust Commission for clearance. The Antitrust Commission has published the Guidelines for Concept of Merger Notification for public consultation, in which the Commission introduced the economic concentration and control concept, with the purpose of clarifying what type of operations between economic agents constitutes mergers that are notifiable and fall under the provisions of the Antitrust Law.
The Antitrust Law sets out a suspensive system according to which companies will not be able to close a transaction without the prior authorisation of the Antitrust Commission. However, this system will enter into force one year after the creation of the new National Competition Authority, which has not occurred yet. The Draft Bill for the amendment of the Antitrust Law, which may be approved by Congress in the first semester of 2021, may prompt the beginning of the suspensive regime in 2021.
At the time of writing, the post-closing notification is applicable, according to which the mandatory notice must be delivered prior to or within seven calendar days after the closing of the transaction or the publication of any cash tender or exchange offer.
Upon submission of the notice, the Antitrust Commission and the Secretary of Trade have 45 business days (this term is suspended in cases where additional information is requested) in which to decide whether to unconditionally approve the transaction; approve the transaction, but impose conditions; or reject the transaction. Should the Antitrust Commission consider the transaction may restrict or distort competition, prior to the issuance of its final decision, it must communicate in writing its objection to the parties (statement of objections) and summon a special hearing to consider the remedies. In these cases, the term to resolve is extended by up to 120 additional business days.
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, it should be noted that the current average review time frame is of nine to 12 months, even in non-material transactions, due to a stop-the-clock interpretation by the Antitrust Commission, which considers that the first request for information stops the 45-business-day term until it has obtained all necessary answers for the issuance of its decision. Under the Antitrust Law, there is a summary proceeding foreseen for certain concentrations (fast-track), for which the review time frame for approval is approximately three months.
The transaction has no effects with regard to the parties involved or any third parties until it has been approved, whether expressly or tacitly.
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, provided, however, that the exemption would not apply if any of the involved companies were involved in economic concentrations in the same relevant market for an aggregate of 20 million adjustable units 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 up to 750,000 adjustable units, which represents approximately 30.5 million Argentine pesos per day of delay.
Section 9 of the Antitrust Law states that any transaction subject to control by the Antitrust Commission does not bring about any effects in relation to the involved parties or any third party until it is approved by the Antitrust Commission, either expressly or tacitly.
i Significant cases
During 2020, the suspension of procedural terms as a result of the covid-19 pandemic delayed the decision in several significant merger cases that are expected to be concluded during 2021.
However, one of the most relevant merger cases concluded in 2020 comprises a joint venture between two major airlines, as detailed below:
Aerolineas Argentinas SA and Alitalia Societá Aerea Italiana SPA11
In February 2020, the Antitrust Commission issued its final resolution on a case that entailed a joint venture between Aerolineas Argentinas, the country's main airline, and Alitalia, an airline controlled by the Italian government. The two companies agreed to collaborate in order to provide commercial air transport to passengers wishing to travel between Italy and Argentina. This alliance has a duration of five years and includes a coordinated strategy for the establishment of prices and capacity as well as full cooperation regarding the management of income and the commercialisation and distribution of plane tickets.
The Antitrust Commission carried out a thorough analysis of the commercial flights market. It only identified an overlap in the Buenos Aires–Rome route, but it also considered the potential effects the transaction could have at a flight network level. The Antitrust Commission performed an analysis not only on a city-to-city level, but also taking into account each country and each continent. Thus, it analysed the effects of the transaction on the Argentina–Italy and Argentina–Europe routes.
The Antitrust Commission finally decided that the transaction did not raise any competitive concerns. To reach this conclusion, it considered the low barriers of entry to the relevant market for other airlines and the significant level of competition these airlines faced for the routes in question.
ii Trends, developments and strategies
One of the most important modifications introduced by the Antitrust Law is the creation of a new merger control system, which greatly increases the amounts for both the notification threshold and the de minimis exemption; seeks to reduce review time frames; and sets out a suspensive system, as opposed to the current interim post-closing notification system.
As mentioned above, the Antitrust Law modifies the notification threshold, using adjustable units that will be updated annually. Pursuant to the Antitrust Law, the new threshold is met if the acquiring group and target surpass a combined turnover of 100 million adjustable units, thus increasing the threshold to an amount closer to the one that had originally been envisaged. It is worth noting that the threshold is the same across industries, and that the entire volume of business of the involved companies must be taken into account, irrespective of whether they have been generated by the market in which the transaction will take place or not.
The same update takes place as regards the de minimis exemption, which is now applicable if both the local amount of the transaction and the local amount of the assets being transferred each do not surpass 20 million adjustable units; and if the previous condition is met, the acquiring group or target must not have carried out transactions in the same relevant market for 20 million adjustable units in the past 12 months or 60 million adjustable units in the past 36 months.
The Antitrust Law also sets up a suspensive regime in which the parties will not be able to close the transaction prior to its approval. This is the most relevant departure from the former Antitrust Law as regards the notification system, in which parties could close the transaction and file for notification up to one week afterwards. The Antitrust Law now sets out fines for gun jumping, which had hitherto never existed in Argentine merger control proceedings. It must be noted that, according to the law, the suspensive regime will become effective one year after its enactment so as to provide sufficient time for the National Competition Authority to clear its abundant workload on merger control cases. However, the National Competition Authority has not been created and is unlikely to be created in the near future, which prevents the application of the suspensory regime. As far as developments in this regard go, the Bill for the amendment of the Antitrust Law mentioned in the overview section states that the entry into force of the suspensive regime will occur 90 days after the Draft Bill is published in the Official Gazette. Since there is no set date for the House of Representatives to discuss the Draft Bill, there is no certainty as to when the suspensory regime will enter into force.
Further to this suspensive system, the Antitrust Law defines a review time frame of 45 working days plus an additional 120-working-day term. The former Antitrust Law also had a 45-working-day review time frame, which over the passing of time was ignored, reaching average review time frames of over 30 months even in non-material transactions. However, it must be taken into account that said delays took place in a non-suspensive system that eliminated the pressure for the Antitrust Commission to issue the clearances in time. Under this system, it remains to be seen whether the Commission will be able to meet the time frames set out by the Antitrust Law.
In that regard, the Antitrust Law sets out a fast-track system for those transactions that do not present competition concerns. However, this system has not been regulated yet.
Finally, the new system also includes a mechanism for third parties to file their comments on the merger, which are non-binding for the Antitrust Commission; nor is there an obligation for it to comment on them.
Merger Control Guidelines
In addition to the news introduced by the Antitrust Law, the Antitrust Commission has issued an updated version of its Merger Control Guidelines (which had not been updated since 2001). The new Guidelines provide a much-needed reference for practitioners in their day-to-day interactions with the Antitrust Commission, of which the following matters can be highlighted.
The Guidelines clearly set out that transactions with a combined market share of 20 per cent or less will be considered to be non-problematic, which triggers the application of the fast-track procedure. Unlike past practice, this indicates that these transactions will be cleared in rapidly and will not be subject to intensive review by the Commission.
This approach is further complemented with clear rules on the usage of the Herfindahl–Hirschman Index (HHI), which was previously used without specific rules. Pursuant to the Guidelines, those transactions that have a post-transaction HHI below 2,000 will be considered as non-relevant. Transactions that surpass this amount, but where the delta between the prior and post-transaction scenarios is below 150 points, will also be considered non-problematic. Furthermore, if the post-transaction market shares are lower than 30 per cent and if the post-transaction HHI is less than 3,000 or has a delta of less than 250 points, then the transaction will also be deemed as non-relevant.
Furthermore, the Guidelines now provide for a more fulsome approach as regards the techniques to be used by the Antitrust Commission. In that regard, they now incorporate the notion of upward pricing pressure as a method to determine possible unilateral actions post-transaction as well as including a specific review on coordinated effects. Other factors that are now included as relevant comprise competition from imported products, countervailing buyer power, the creation of a portfolio effect and the failing firm approach to a transaction.
The Guidelines also provide a commentary on the possible review of ancillary restraints, following the current practice by the new Administration of not setting out specific terms for their duration, but rather to analyse them on a case-by-case basis.
In short, the Guidelines provide clearer rules for parties interested in carrying out a merger control notification in Argentina, which allows them to fully assess the type of review that they will be subject to as well as have a better estimate regarding the proposed timeline.
Owing to the issuance of the Antitrust Law, the complete overhaul of the merger control system helped the regulator steer away from the slow and cumbersome review process it had had for more than a decade, significantly improving results during the course of 2019 and 2020, even in spite of the global pandemic. It remains to be seen how the new roster of the Antitrust Commission will handle the proceedings and whether the suspensive system can be implemented in the near future.
Furthermore, while the Antitrust Commission has issued draft Guidelines for the Concept of Merger Notification, a final document is expected to be issued in 2021.
i Pending cases and legislation
The Antitrust Law has already addressed several of the most relevant shortcomings in antitrust enforcement in Argentina. However, since the creation of the National Competition Authority was delayed and, as a result, the entry into force of the pre-closing system was delayed as well, most of its more relevant changes have not been implemented yet. If the Draft Bill is passed during 2021, effective progress towards the creation of the National Competition Authority and the implementation of the suspensive merger control regime will have occurred. In addition, the issuance of the final document of the Guidelines for the Concept of Merger Notification and the Guidelines for Leniency are expected.
Finally, it also remains to be seen how the Antitrust Commission will continue the investigation into the emblematic Notebooks case.
At the present time, one of the main priorities is to see whether the Draft Bill is approved by Congress during its extraordinary sessions, as scheduled. If so, the National Competition Authority and the suspensive system will be implemented during 2021, which will have a direct effect on notifications.
Great strides have been made over the past years, while great challenges remain ahead.
1 Miguel del Pino and Santiago del Río are partners at Marval, O'Farrell & Mairal. The authors would like to thank Paloma Tacchella and Franco Nigro for their assistance on this chapter.
2 Antitrust Law No. 27,442.
3 All references to the Antitrust Commission should be considered as corresponding to the double-tier structure until this authority has been set up.
4 Official press release available at: https://www.argentina.gob.ar/noticias/empresa-de-oxigeno-liquido-debe-mantener-precios-y-aumentar-su-produccion.
5 Official press release available at: https://www.argentina.gob.ar/noticias/los-frigorificos-deberan-informar-el-precio-de-la-carne-vacuna-y-derivados-para-evitar.
6 Resolution No. 202/2020 issued by the Secretary of Domestic Trade. Available at: https://www.boletinoficial.gob.ar/detalleAviso/primera/231517/20200701?busqueda=2.
7 Opinion No. 513 of the Antitrust Commission dated 25 July 2005.
8 Opinion No. 510 of the Antitrust Commission dated 8 July 2005.
9 Resolution No. 371 of the Secretary of Trade, dated 26 June 2018.
11 Resolution No. RESOL-2020-88-APN-SCI#MDP issued by the Secretary of Domestic Trade on 12 March 2020.