National Antitrust Commission Issues Document Presenting Its Official Interpretations Regarding Late Filings

On December 13, 2022, the Argentine Antitrust Commission published its Working Paper on Late Filing Sanctions together with a thorough study concerning their impact on economic concentration transactions.  The Paper addresses the concept and implementation of fines for late filing, along with a general overview of its development throughout the Argentine antitrust legislation.

Fines for late filing were first included in 1999 through the enactment of Law No. 25156, later replaced by the current Antitrust Law No. 27442. The Law No. 25156 established merger control regulations within the Argentinian legislation.

In this sense, the Paper classifies the late filing of an economic concentration as a formal infringement, given that the corresponding merger control notification must be filed within a certain timeframe, by certain subjects, and following certain formalities, in accordance with the provisions of the Antitrust Law and its complementary regulations[1].

As a result, the Paper clarifies that a fine for late filing will be applicable not only when filing is performed outside the legal term, but also when the filing’s formalities set forth in the applicable regulations are not complied with, or when the task is undertaken by others different from those with the legal obligation to file the corresponding information. This clarification is relevant to better understand the extension of this type of sanctions.

It should be noted that the Paper covers various aspects related to the imposition of this type of sanction to provide an exhaustive study on merger control. As such, it deals with the concept of economic concentrations, the requirements set out by the Antitrust Law to trigger a merger control filing as a legal obligation, the substantive and procedural aspects of filings, the implications of changing regulations within the framework of such procedures, and the incidence of both Advisory Opinions and Preliminary Proceedings when assessing the severity of the infringement and the corresponding sanction. It is relevant to clarify that the fact that the Paper includes Preliminary Proceedings is relevant, since they are not expressly regulated.
 

The Late Filing Sanction

The Paper also details the late filing sanction and its applicable fines. It states that section 55 of the Antitrust Law regulates the penalties for individuals or legal entities not complying with the Antitrust Law. Specifically, subsection d) states that those not complying with the provisions of the filing procedure will be liable for a daily fine of up to zero point one percent (0.1%) of the national consolidated turnover recorded by the economic group to which the subjects belong, during the last fiscal year or -if this  criterion cannot be applied- a fine of up to seven hundred and fifty thousand (750,000) adjustable units per day[2].

Regarding the fines, the Paper addresses the legal and jurisprudential criteria for arranging fines, including those that serve as mitigating factors, while providing a chronological compilation of caselaw on late filing fines and non-filing fines, from the most recent case to the first one detected by the Antitrust Commission.

Among the mitigating factors considered by the Antitrust Commission in its caselaw, the Paper mentions: economic concentrations not detrimental to the general economic interest, spontaneous and voluntary late notifications of the economic concentration, brief delay in the filing procedure, economic concentrations with low impact on the relevant market, and companies without a history of previous late filing fines. Including these mitigating factors -even if mentioned in a merely indicative manner– results in a useful starting point when considering the potential assessment that the Antitrust Commission may perform in a late filing case.

Conclusion

The fact that the Antitrust Commission produces this type of material is essential for streamlining and clarifying the practice of antitrust law in Argentina. In this way, lawyers, companies, and consumers may find an extremely useful normative and jurisprudential guide regarding the implementation of the Antitrust Law and its complementary rules, therefore resulting in the strengthening of fair competition, consumption, and markets.