The Comisión Nacional de Defensa de la Competencia ("Antitrust Agency") is working on a bill of law that will be sent to Congress in the next few months to amend Argentine Law 25,156 (the "Antitrust Law"). We, along with other relevant actors of the Argentine antitrust sector, have been invited by the Antitrust Agency to cooperate in the preparation of that bill. The draft bill contemplates mainly:
1.- Institutional Framework.
- Creation of a new independent, autarchic, antitrust agency -- the Autoridad Nacional de la Competencia or "ANC") -- within the framework of the Executive Branch of Government, and allocation of powers and authorizations to that agency.
- The ANC shall have five members: President and four officers, who shall be required to count with technical expertise and sound background. The positions shall have a five-year term, and specific early termination (removal) events shall be contemplated.
- New provisions shall be contemplated for the determination of money penalties (fines) increasing the deterring power in respect to anticompetitive conducts.
- Calculation of fine: up to 30% of the business volume (revenue) within the relevant affected market, multiplied by the amount of years the conduct has been exercised.
- Threshold: 10% of the international business volume (revenue) obtained by the economic group during the last fiscal year.
- Recurrence: multiplication of the fine up to a ratio of x2.
- Creation of a Leniency Program. In this case, it would result in providing immunity or penalties reduction to those who provide evidence that allow the detection and penalization of cartels.
3.- Antitrust Clearance in respect to M&As ("Mergers").
- Implementation of a prior control, working ex-ante (to replace the current so-called "close at your risk" system).
- Modification (increase) of the filing thresholds, and the provisions for calculation thereof.
- Creation of a fast-track filing procedure for those Mergers that in the criteria of the ANC have a lesser probability of falling under the law provisions of forbidden Mergers.
4. - Compensation of Damages.
- Legal actions to seek damages' compensation for violations of the Antitrust Law shall be specifically contemplated. Up to this date those actions are admissible only under the generic legal framework of tort.
5. - Court Review.
- Creation of a Chamber of Appeals in Antitrust Matters, as the Court authority that will hear appeals to judgments of the ANC. As of this date, judgements of the antitrust agency are appealable at the General Courts of Law. This matter has raised controversy in past years, where the jurisdiction of different courts of law was challenged (a recent Supreme Court judgement decided that the appropriate Court would be the Federal Courts on Administrative Litigation, even though the matter was not settled erga omnes).
6. Applicable Supplemental Laws.
- The Criminal Code and the Procedural Code on Criminal Matters shall be applicable.
- The Administrative Matters Procedural law shall no longer be applicable.
The amendments contemplated under the bill are welcome by the Argentine antitrust community, which has been demanding for a long time an update of the filing thresholds for merger clearance, a fast track for cases not raising significant antitrust concerns, a streamlining of antitrust process (including appeals), and an improvement of the performance of the antitrust agency. The amendment to the Antitrust Law should help in creating a more attractive environment for investments, and it constitutes one more of the pro-market measures adopted by the Macri administration. One of the main problems faced by the current Antitrust Agency, which has raised the concern of investors is the substantial delay in the processing of antitrust cases (clearances and conducts), but the recently appointed officers of the antitrust agency have made abundantly clear to the antitrust community that they are working hard to solve that problem
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