The Value of Thresholds and Fines under Argentine Antitrust Law Was Updated

The Secretariat of Domestic Trade fixed the value of the Adjustable Unit established in Article 85 of the Antitrust Law 27,442 (the “Antitrust Law”) at ARS 83.45. The measure was handed down through Resolution No. 35/2022, dated January 31, 2022, and published in the Official Gazette on February 2, 2022.

According to this new value, the amounts set out in the Antitrust Law were automatically increased as follows:

Merger Control Threshold. The economic concentrations in which the aggregate volume of business generated in Argentina by the Involved Companies (acquiring group and target or merging entities) in a transaction exceeds 100,000,000 Adjustable Units, equivalent to ARS 8,345,000,000 (USD 77,447,796 according to the relevant exchange rate as set out below), will require the approval of the Antitrust Commission.

1. If the company’s turnover is generated in Argentina by means of a local subsidiary, we recommend referring to the local financial statements which must be issued in local currency, thus avoiding any distortion in the exchange rates.
2. If the company is present through exports into the country (and, as such, has no local financial statements), the Antitrust Law states that the exchange rate that must be used is the sellers’ exchange rate published by the Banco de la Nación Argentina on the day the preceding fiscal year ended. For a financial year ending on December 31, 2021, the rate was 1 USD = 107.75 ARS (Source: Banco de la Nación Argentina).

The “de minimis” threshold.  If a notification is triggered, the “de minimis” exemption could apply if the total local assets of the target and the local consideration of the transaction would each not exceed 20,000,000 Adjustable Units, equivalent to ARS 1,669,000,000 (approximately USD 15,138,322 according to the exchange rate currently available). The exception does not apply if any of the companies were involved in economic concentrations in the same relevant market for an aggregate of ARS 1,669,000,000 in the last 12 months or 60,000,000 Adjustable Units, equivalent to ARS 5,007,000,000 (approximately USD 45,414,966 according to the exchange rate currently available), in the last 36 months.

1. In this case, for the calculation of the assets, we also recommend referring to the local financial statements which must be issued in local currency, thus avoiding any distortion regarding exchange rates.

2. For the calculation of the value of the transaction, the exchange rate available at the time of the closing should be considered.

Late filing fine. When the other method of calculation established by the Antitrust Law is not viable, the parties that did not comply with the mandatory notification will be subject to a fine of up to 750,000 Adjustable Units per day of delay, equivalent to ARS 62,587,500 (approximately USD 567,687 according to the exchange rate currently available).

Fines for anticompetitive conducts. When the other methods of calculation established by the Antitrust Law are not viable, the parties that have conducted anti-competitive conducts will be subject to a fine of up to 200,000,000 Adjustable Units, which equals ARS 16,690,000,000 (approximately USD 151.383.220 according to the exchange rate currently available).

The value set out by this Resolution will become effective from February 3, 2022, and will remain in force until 2023’s value is published by the Secretariat of Domestic Trade or National Competition Authority.

Finally, the Resolution does not provide for any other change as regards merger control proceedings. As such, the current non-suspensory regime continues to apply, which means the parties to a transaction can close it and carry out the notification either before or up to one week after the closing.

[1] USD 1 = ARS 110.25 at the time of writing.