New proceedings to request advisory opinions

1.    Background

Decree No 89/2001 (the “Decree”), which ruled the Antitrust Law No 25,156 (the “Antitrust Law”), provided that until the National Tribunal for the Defense of Competition (the “Tribunal”) is set up the Secretary for the Defense of Competition and Consumer shall issue the procedural ruling the advisory opinions that concentrating parties may file in connection with economic concentrations. The Decree states that parties to a transaction are entitled to file a voluntary petition for an advisory opinion before the competent authority.

Additionally, the Decree establishes that the Tribunal must issue the advisory opinion within the term of 10 business days from the day in which the parties file the petition and that the one week term provided in Section 8 of the Antitrust Law (the triggering event) will be suspended upon filing of the petition and until the advisory opinion is notified to the parties. Considering that the Tribunal has not yet been set up, advisory opinions are currently requested before and issued by the National Commission for the Defense of Competition (the “Commission”).

2.    New procedure

In order to require the advisory opinion, the parties have to describe the transaction and explain why, under their interpretation, the transaction is exempted from the prior antitrust control. The requirement must be filed before the Commission. 

The Commission must analyze the information filed by the parties and, if necessary, it may require additional information. The parties are granted a 5 day period to answer the requirement and if it is not answered, the petition will be considered as not filed, unless they explain the reason for the non-compliance.

If no additional information is requested or if the parties comply with the requirements, the Commission must issue its opinion within the term of 10 business days from the day in which the parties filed the petition. Afterwards, the docket will be sent to the Secretary of Technical Coordination of the Ministry of Economy and Production (the “Secretary”) who will have to issue the formal “advisory opinion” within the term of 5 days. However, the Secretary is empowered to suspend the terms for justified reasons.

The advisory opinion issued by the Secretary could be challenged by requesting the Secretary the revision of its own decision and by filing an appeal before the Secretary. The Secretary will decide about the admission of said petitions. The appeal, if it is admitted by, will be sent by the Secretary to the Federal Court on Civil and Commercial Matters of the City of Buenos Aires.

The term of one week to notify an economic concentration provided in Section 8 of the Antitrust Law will be suspended upon filing of the petition and until the advisory opinion becomes final.

3.    Comment

Resolution No 26/2006 issued by the Secretary provides a much more tight proceeding compared with the one currently applied by the Commission which is more expedite.