Argentina – Brazil: Cooperation Agreement on Antitrust Matters

The purpose of the “Cooperation Agreement between Argentina and the Federative Republic of Brazil on cooperation between their Antitrust Authorities in the application of their antitrust laws” -signed in Buenos Aires on October 16, 2003- (the “Cooperation Agreement”) is to promote cooperation between enforcement authorities of each Party State in antitrust matters. Such cooperation does not only refer to the enforcement of antitrust laws but also to technical cooperation. It also seeks to ensure that the parties guarantee careful consideration of their mutual interest in the enforcement of their antitrust laws.

Each Party shall notify what relates to Enforcement Activities (this covers all research, including examining concentration acts as well as any other proceeding brought by a Party). The notification should be made within 15 days.

Enforcement Activities to be notified are those which:(i)  are relevant to the activities of the other Party in the enforcement of its laws,  (ii)  involve anticompetitive practices, other than mergers or acquisitions, carried out in the whole or in a substantial part of the territory of the other Party, (iii)  involve acts of concentration, in which one or more of the involved parties or a company controlling one or more parties of a transaction, is a  
company   incorporated or organized under the laws of the other party, (iv)  involve conducts allegedly researched, promoted or approved by the other party; and (v)   involve the search for information available in the territory of the other Party.

It also authorizes officials of the Parties to perform visits to the territory of another Party in the course of research under their respective laws. These visits should be subject to notification and consent of the notified Party.

Within the framework of the Cooperation Agreement, the exchange of information that a) can facilitate the effective enforcement of the corresponding antitrust laws, or b) may promote a proper understanding of the economic and market conditions relevant to competition activities mentioned.

Enforcement authorities of both countries should meet at least twice a year, to promote the exchange of information, promote exchange of information on economic sectors of common interest and discuss potential public policy changes that have implications on competition and that might be of interest.

It is of mutual interest to the Parties to cooperate for the identification of anticompetitive practices. Likewise, it is of mutual interest to ensure the efficient functioning of their markets for the implementation of their respective antitrust laws in order to protect them from anticompetitive practices.

Confidentiality provisions are also provided and no party is obliged to provide information to the other Party, under any event, when the provision of such information is prohibited pursuant to the laws of the Party possessing the information or if it would be not consistent with important interest of that Party.

The Cooperation Agreement also provides that the Party who investigates an anticompetitive practice based on this agreement may notify the Republic of Uruguay and Paraguay on the outcome of the investigations and their progress.

If there are any changes to antitrust laws, each Party shall immediately notify the other of that circumstance.

This Cooperation Agreement shall enter into force on the date of the last notification by means of which either Argentina or Brazil informs the other party that it has complied with the relevant legal formalities required for its entry into force.

Prior to this Cooperation Agreement, and within the scope of the Mercosur, it is worth noting that its member states (Argentina, Brazil, Paraguay and Uruguay) signed  (i)  on July 7, 2004, the "Understanding on Cooperation between the Antitrust Authorities of the Member States of Mercosur for the application of their  National Antitrust Laws” which contains similar features to the here mentioned Cooperation Agreement; and (ii) on July 20, 2006, the “Understanding on Cooperation between the Antitrust Authorities of the Member States of Mercosur for the Control of Economic Concentrations in the regional level”.

The fact that Argentina is about to approve the Cooperation Agreement ratifies that the performance of such cooperation agreements on antitrust matters is of great importance to Argentina and Brazil, as it is also demonstrated by the cooperation agreements signed within the scope of the Mercosur.

The Argentine Antitrust Commission and the Brazilian CADE (Administrative Council of the Economic Defense) are in contact. In the current year officials of the Argentine Antitrust Commission have participated in meetings at the Brazilian Antitrust Commission and officials of both authorities have met in various international events in this area. The signing of these agreements also proves the constant commercial contact between Argentina and Brazil. Regarding antitrust matters, Brazil is more advanced and the agreement shows the interest of Argentina to further advance in this field.

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