New Guidelines for Precautionary Measures in Merger Control

I. Introduction

The recent transaction between Telecom Argentina SA  and Telefonica Moviles Argentina SA is a milestone in the Argentine telecommunications sector and has become a matter of interest due to its potential competitive impact in the market. Pursuant to Telecom’s statements, on February 24, 2025, the company acquired exclusive control over Telefonica for USD 1245 million.²

Once the transaction was notified before the Antitrust Authority (the Antitrust Commission), the Commission requested reports from the Argentine Communications Agency (ENACOM) following article 17 of the Antitrust Law 27442. Article 17 provides for the intervention of regulatory agencies—such as ENACOM—when the notified economic concentration involves regulated services of public interest (such as communications).

In this context, on March 21, 2025 the Secretariat of Industry and Commerce, following the Antitrust Commission’s recommendations and ENACOM’s reports, issued a preliminary injunction under article 44 of the Antitrust Law, ordering Telecom and Telefonica to keep their businesses separate for at least six months or until the Antitrust Commission closes the proceedings according to article 14 of the Antitrust Law (i.e., accepts, conditions, or rejects the transaction).
 

II. Preliminary injunction

The Secretariat issued Resolution 2025/63, imposing a precautionary measure that ordered the companies to refrain from carrying out any type of legal, corporate, and/or commercial acts that directly or indirectly imply the integration or consolidation between both companies. Unlike other precedents where a preliminary injunction of this type was imposed but in a broader manner, the Secretariat included in its Resolution a series of specific guidelines to provide clear and concrete implementation.

For example, the Resolution states that this measure will last for six months or until the Antitrust Commission decides as stated in article 14 of the Antitrust Law. This represents a considerable difference with other cases where these preliminary injunctions had no specific deadline. The Secretariat also clarified that the preliminary injunction included any initiative that involved unifying or integrating Telecom and Telefonica’s teams, and any exchange of competitively sensitive information such as prices, pricing strategies, costs and margins, business plans and commercial strategies, information about customers and suppliers, and investment plans.

Moreover, compared to previous cases, the Resolution establishes that the precautionary measure must be monitored by an agent. Consequently, there is a strong indication that the Antitrust Commission will enforce compliance strictly, to prevent effective integration taking place. This could result in a negative impact on competition before the Commission can analyze the case in depth.

The Resolution anticipates that preliminary injunctions will be issued faster in more complex transactions. Even though it is not the first time that the Secretariat’s Resolution aligns with the Antitrust Commission’s recommendations, it is the first time that a preliminary injunction is issued independently and separately from a Statement of Objection, at such an early stage of the proceedings (i.e., a few days after the notification). In this sense, the Resolution explains that “although the rule authorizes the Enforcement Authority to take this measure at any stage of the proceedings, as a general rule, these should not be issued at an advanced stage of the process of analysis of an economic concentration, since this would distort its own function of preventing damage and avoiding, where appropriate, its aggravation.”

III. Preliminary conclusions 

In short, the Resolution marks what could perhaps be considered a turning point in the Secretariat’s issuance of preliminary injunctions for the merger control regime in Argentina, at least until the ex-ante system, as provided in the Antitrust Law, comes into force.
 

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²See the Argentine Register of Competition Defence (register of the notified economic concentrations operations). 
Available here: https://www.argentina.gob.ar/defensadelacompetencia/registro-nacional/registro-de-operaciones-de-concentracion-economica-notificadas