When Does the ANC Consider a Mining Project a Business?

On April 10, 2026, Posco Argentina SAU requested the Argentine Competition Authority (ANC) issued an advisory opinion on whether the acquisition of sole control over NRG Metals Argentina SA was subject to mandatory notification pursuant to article 9 of the Antitrust Law 27442.^[1]

In analyzing the request, the Secretariat of Economic Concentrations (SCE) noted that, for a transaction to be an economic concentration under article 7 of the Antitrust Law, the sole acquisition of control is not enough: such control must be exercised over a business.

The SCE thus referred to the criterion developed by the then Antitrust Commission in YPF/ESSO (OPI 83) and IRSA/Banco Rio (OPI 131), according to which assets may be considered a business if they allow developing one or more activities to which independent turnover—as well as their own clientele and value arising from the possibility of generating economic activity—may be attributed.

The SCE noted that this criterion had already been applied specifically to exploration-stage mining projects. In line with the precedents Puna/Lition-Lithos (Conc. 2099), Litos/Lithion (OPI 373), and Cerro Vanguardia (OPI 375), the SCE stated that exploration rights do not constitute a business asset since they do not allow the volume of resources to be extracted to be determined with certainty or establish proven reserves, but are instead intended to assess the project’s viability. In Pan American Sur/San Matias Pipeline (OPI 393), similar reasoning was applied to a special-purpose vehicle with no activity of its own.

In the case under review, NRG held 100% ownership of the Hombre Muerto Norte project, which was in the preliminary economic assessment stage and had not reported any turnover in 2025 or in prior fiscal years, since the project had not generated revenue from the sale of products or the provision of services. On that basis, and following the criterion applied in its precedents, the SCE concluded that, at its exploration stage, the Hombre Muerto Norte project did not constitute a business unit to which turnover, clientele, and value of its own could be attributed.

Ultimately, the SCE indicated that Posco’s acquisition of control over NRG did not constitute an acquisition of control over a “business” within the meaning of article 7 of the Antitrust Law. The Antitrust Tribunal fully concurred with the SCE’s assessment and conclusions and, therefore, ruled that the transaction was not subject to mandatory notification.