Fourteen years after the enactment of the Antitrust Law No. 25,156, two bills for its amendment have been submitted before Congress. Although the bills of amendment remain under the analysis and study of the advisors of the Rights and Guarantees Commission of the Senate, as of September 26, 2013 the two bills have been unified and therefore will be treated together in a single docket
The first bill involving the amendment of the Antitrust Law No 25,156 (the “Antitrust Law”) was submitted by the Senator Roberto Basualdo and advocates for the updating of the amounts included under section 8, 10 and 46 of the Antitrust Law, mainly merger control thresholds, exemptions for filing and fines for anticompetitive conducts.
Regarding the merger control regime thresholds of Section 8 of the Antitrust Law, the bill states that the volume of business provided under said section for an economic concentration to require approval by the Antitrust Commission (the “Commission”) will be raised from the current AR$ 200,000,000 (1) to the amount of AR$ 600,000,000. (2) While the updating would certainly raise the bar for transactions to be filed, it is important to bear in mind that it would still be almost one half of the value it was originally intended to be in 1999, when the Argentine Peso was pegged to the US dollar.
Accordingly, the bill seeks to increase the amount provided by Section 10.e) for those transactions that would benefit from the de minimis exemption. As a result of such amendment, the new de minimis provision would operate if the total local assets of the acquired company and the local amount of the transaction each do not exceed AR$ 60,000,000; (3) provided, however, that the exemption would not apply if any of the involved companies were involved in economic concentrations in the same relevant market for an aggregate of AR$ 60,000,000 (4) in the last 12 months or AR$ 180,000,000 (5) for the last 36 months.
Finally, this bill provides that Section 46 of the Antitrust Law will be amended so as to increase the amounts of the sanctions applicable to those who are found responsible for committing the acts prohibited under Chapters I and II and Section 13 of Chapter III of the Antitrust Law, namely anticompetitive practices. Thus, the fines set out by Section 46.b) would be increased and the amended section would read “Those who perform acts prohibited under Chapters I and II and Section 13 of Chapter III shall be punished by a fine of thirty thousand pesos (AR$ 30,000 (6) ) to four hundred fifty million pesos (AR$ 450,000,000 (7) )”.
Due to an increasing inflation rate, the current bill would adjust the amounts to the current scenario, in which the amounts set out in the Antitrust Law have been now reduced to a sixth of their original value, when comparing them to the US dollar. Nevertheless, it is worth pointing out that the proposed bill does not contemplate the increase of the fines set out by Section 46.d) of the Antitrust Law for those who fail to submit an economic concentration for the approval of the Commission and those who fail to comply to the order of the Commission to refrain from performing certain acts in the course of an investigation for anticompetitive conduct. Therefore, the fine provided under Section 46.d) of the Antitrust Law would remain at the sum of up to AR$ 1,000,000 (8) per day.
The second bill involving the amendment of the Antitrust Law was submitted by Senator Juan C. Romero and seeks the amendments necessary to reflect the proper name of the state agencies listed in the Antitrust Law as responsible for applying the provisions contained therein. It is important to bear in mind that the Antitrust Law in its 1999 drafting contemplated the creation of said body, yet there have been no developments on its incorporation ever since. The enforcement is currently being carried out by a double-tier scheme, including both the Antitrust Commission and the Secretary of Domestic Trade, which has been greatly criticized, especially from the Judicial Power.
Regarding the significance of the incorporation of the Antitrust Tribunal, the bill states “Faced with the importance involving the incorporation of the Antitrust Tribunal, and to avoid unnecessary delays and debates involving the authorities and responsibilities in the application of the Antitrust Law, I present this bill which amends Sections 17 and 19 of Law 25,156, adapting the same to the present times and including the current bodies, corresponding both to the Secretariats and the Ministry, pursuant to the current organizational structure.”
While it is still uncertain if the bills submitted will be passed in the short term, the fact that Congress has taken notice of the two of the crucial issues involving the application of the Antitrust Law, namely the lack of the creation of the tribunal and the need to adjust the amounts contained in the provisions of the Antitrust Law regarding both merger control and fines, is paramount.