The National Antitrust Commission establishes the Technical Criteria for the Framing of Economic Concentrations in the Summary Proceeding

According to the Resolution, the parties to a transaction may opt for PROSUM by filing a Form F0 in those cases in which it is presumed that an economic concentration transaction will not have significant effects on competition. Moreover, such Resolution instructs the National Antitrust Commission (hereinafter the “CNDC”) to establish the technical criteria to determine which transactions may qualify and be filed under the PROSUM. On August 28, 2023, the CNDC issued the provision 62/2023 (the “Provision”) establishing the technical criteria described above.

Technical criteria for inclusion in the PROSUM - According to Section 3 of Annex I, those economic concentration transactions that meet one or more of the criteria set forth below qualify for filing under the PROSUM:
 

1. Conglomerate concentrations
2. Transactions that imply a change in the nature of control over the target, in such a way that there is a change from a situation of joint control to one of sole control, provided that the sole control was acquired by one of the pre-existing controlling parties at the time of completion of the notified transaction.
3. Horizontal concentrations, if the combined market share in each of the relevant markets affected by the notified transaction is less than 20%.
4. Horizontal concentrations, if the combined market share in each of the relevant markets affected by the notified transaction is less than 35%, and the increase in the HHI is less than 150 points.
5. Vertical concentrations, if the individual shares in each vertically related market are less than 30%.

Technical criteria for exclusion from PROSUM - According to Section 4 of Annex I, those economic concentration transactions that present any of the elements indicated below will be excluded from being filed under PROSUM:
 

1. When the parties, at the time of making the submission that initiates the procedure, are not in a position to provide all the information and documentation established in the form F0.
2. When the post-transaction HHI in a relevant market affected by the transaction is greater than 2,500 points.
3. When the concentration eliminates a vigorous and effective competitor (actual or potential).
4. When the concentration combines two important innovative entities.
5. When there are indications that the concentration would prevent the expansion of competitors in any relevant market affected by the transaction.
6. When a company already established in a market intends to acquire a small but highly innovative company -even if it has not yet reached its technological ceiling- either to use its technology or to deactivate it.
7. When the notified transaction could significantly increase the parties market power, due to the combination of technological, financial, or other resources, even if the combining entities do not operate in the same market.
8. When the notified transaction generates a portfolio of products and/or services.
9. When the notified transaction involves the creation of a joint venture by companies that remain independent, which will occur when the transaction involves the creation of a joint venture for a specific business segment by companies that will continue to operate the rest of their business units independently.
10. When the transaction implies that the target changes from a situation of joint control to one of sole control, and any of the following situations arise:

1. the company that acquires sole control is itself a direct competitor of such company; provided that the joint market share of both companies is substantially high (pursuant to sections 3.d. and 4.c. hereof); or
2. the CNDC had not examined the previous transaction of acquisition of joint control with respect to the target of the transaction by the company acquiring control and the company that ceases to be the controlling company at this time.

11. When, contemporaneously to the notified transaction, the acquirer or the target, or its controlling or controlled companies -directly or indirectly-, had corporate shareholdings in competing company/s that are greater than 5% of the capital stock or votes.
12. When a national economic regulatory agency must issue the opinion provided for in Section 17 of Law No. 27,442, unless the parties demonstrate -at the time of notification- that the agency in question has no objections regarding the potential impact on competition in the respective market and compliance with the applicable regulatory framework.
13. When the CNDC considers that further information is required to properly analyze the effects of the transaction on competition.

Furthermore, the Provision brings a series of clarifications with respect to the Resolution, namely:
 

1. Forms F0, F1 and F2 – The new forms shall apply to new notifications made after the entry into force of the Resolution.
2. Section 5, subsection (d): Computation and interruption of deadlines - The deadlines shall remain suspended from the moment the CNDC requests additional information from the parties and/or makes observations to the forms, and so shall continue until the last submission of the parties prior to the issuance of the opinion.
3. Section 9, item 9.1 (b) and 9.2 - Notification procedures - The decision as to whether or not a submission falls under PROSUM shall be made by the CNDC.
4. Form F0 item 6.ii.a. - Information on the relevant markets of the transaction - It must be understood that the definition proposed by the parties must be such that it does not allow for another definition where the concentration is higher, i.e., it must be the scenario with the highest possible concentration.
    

Finally, this provision entered into effect on August 29, 2023.