Yes, the relevant legislation for merger control is set out in Antitrust Law No. 27,442 ("Antitrust Law") enacted on May 24, 2018. Notifications, applications, registrations, filings, declarations, and reports regarding mergers are also regulated by Decree No. 480/2018, Resolution No. 359/2018, Resolution No. 208/2018, Resolution No. 905/2023, and Resolution No. 26/2006.

The merger control procedure is conducted by the Argentine Antitrust Commission ("Antitrust Commission") within the scope of the Ministry of Economy, which issues a recommendation to the Secretary of Trade who has the final decision-making power. The Antitrust Law creates a new Antitrust Authority (the "National Competition Authority") which will be a decentralized and autarchic body within the Executive Branch. This new regulator will be organized into three divisions: the Antitrust Tribunal, the Anticompetitive Conduct Secretariat and the Merger Control Secretariat. However, its members have not been appointed yet. In the meantime, the current double-tier regulatory system will remain in force.

No, there is not a supranational regulatory agency that has exclusive competence.

The Antitrust Law states certain merger filing requirements including:

• Change of control;
• Reaching the thresholds; and
• No exemptions apply.

The Antitrust Law sets out in Section 7 that certain transactions are deemed to be economic

• concentrations subject to merger control when they result in the assumption of control of one or more companies by means of: 
• a merger; 
• transfer of businesses; 
• acquisition of shares or equity interests, any interest thereto, convertible debt securities or securities that grant the acquirer control of, or substantial influence over, the issuer; and 
• any other agreement or act through which assets of a company are transferred to a person or economic group, or that gives decision-making control over the ordinary or extraordinary management decisions of a company. 

• the acquisition of companies in which the purchaser already holds more than 50 percent of the shares, provided that it does not entail a change of control; 
• the acquisition of bonds, debentures, non-voting shares or debt securities; 
• the acquisition of only one company by only one foreign company that has no assets or shares of other companies in Argentina, which requires that the acquiring group would not have to be present in Argentina on any market, either by the direct presence (i.e. subsidiary) or by means of exports into the country in the last 36 months (first landing exemption); 
• the acquisition of companies that have not registered activity in Argentina in the last year provided that the main activities of the target company and the buyer do not overlap; or 
• the acquisition of companies if the total local assets of the target company and the local amount of the transaction each do not exceed 20,000,000 Adjustable Units (equivalent to ARS 3,251,000,000), 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 20,000,000 Adjustable Units in the last 12 months or 60,000,000 Adjustable Units (equivalent to ARS 9,753,000,000) for the last 36 months (de minimis exemption). 

The key element for the determination of the notification is whether there is any change in the nature of control. Following the definition of control adopted by the European Commission, the Antitrust Commission has defined control as the ability to determine the strategic commercial policy of a company. The concept of control can be classified based on the nature of the control: exclusive or joint. There is exclusive control when only one shareholder by itself has the power to determine the strategic commercial policy of a company; there is joint control when two or more shareholders each have the power to determine or block such policies.

The Antitrust Commission has also defined the distinction between joint and exclusive control by relying on the European Commission’s interpretations. In Advisory Opinion No. 124, the Antitrust Commission describes the existence of joint control as the situation in which shareholders must reach an agreement regarding strategic commercial decisions. It further determines that the existence of veto rights must be analyzed to define the existence of joint control. Those veto rights might include approval of the budget, business plans, regular investments, regular indebtedness and appointment of key officers. The Antitrust Commission states that holding one or more of such veto rights is sufficient to confer control.

The Antitrust Commission has also determined, through various Advisory Opinions that transactions that imply a change in the nature of control (from joint control to exclusive control or vice versa) are also deemed to be economic concentrations.

The acquisition of minority shareholdings not conferring control (according to EU rules) does generally not constitute a notifiable concentration. But, there has been a case (Telecom/Telefónica) where the acquisition of a minority shareholding entailing less than control (acquisition of a minority interest of 42 percent) was notifiable. In this case, the Antitrust Commission raised concerns as regards access to sensible/confidential information. In the Antitrust Commission’s opinion, this access to confidential information would generate the same effects as an economic concentration and therefore, the transaction had to be notified. Nonetheless, please note that as of the date of writing, there has not been any other similar decision on this line.

In the case of exports or sales into the country, the Commission has analyzed whether a foreign undertaking has an Argentine presence in several cases (the same approach has been taken regarding the acquiring entity or the target). Its traditional approach has been based on the notions of regularity, predictability and substantiality of the exports of the undertaking to the country. The regularity and predictability factors have been analyzed to entail a similar situation over the last three years, in order to ensure that the effects were maintained through said period of time. Regarding “substantiality”, its analysis has evolved through its case law. 

As such, it has considered that if the undertaking carried out a substantial portion of the total imports of the products in the country (Advisory Opinion No. 42, dated May 3, 2000) or if it represented a share of more than 15 percent (Advisory Opinion No. 44, dated May 23, 2000 and No. 65, dated October 25, 2000), a notification was deemed necessary. Furthermore, it has considered that those imports which entailed much lower market shares - such as less than 1 percent of the Argentine market share - were deemed as indicative that the transaction generated no effects in the country (as analyzed in Advisory Opinion No. 52 dated July 10, 2000, No. 79, dated December 4, 2000 and No. 92, dated January 26, 2001, among others). A similar approach was taken in Advisory Opinion No. 75, dated November 21, 2000, in which a market share of 4 percent was considered as not relevant as regards effects in the country (replicated in Advisory Opinion 118, dated May 18, 2001 with a 3.5 percent market share). 

This interpretation of the notion of substantiality linked to a specific market share was uniformly maintained until Advisory Opinion No. 932, dated June 19, 2012. In this case, the target company had made exports into the country over the last 4 years for amounts that were always more than USD 135,000,000. In said case, the parties claimed that the transaction was not subject to notification given that the market shares were lower than 14 percent, yet the Commission stated that “… such case law has now been overruled and, secondly, such market share must be analyzed in every case in order to determine the effects that the transaction may generate and if it has the potentiality of affecting the general economic interest, which is a different situation than the one analyzed in advisory opinions”. Following said interpretation, it considered that the target had a relevant presence through imports into the country, regardless of the specific market share. As it can be observed, said case entailed a departure from the case law that had been maintained since the early 2000s and entails that market shares should no longer be considered a “safe harbor” for lack of notification.

Moreover, the Commission has deemed that imports for an average of approximately EUR 10,000,000 over the last three years and with a market share of 2-3 percent did not entail a presence into the country (Advisory Opinion 1303 dated July 22, 2016), yet it has considered in another case that imports of USD 20,000,000 were significant (in Advisory Opinion No. 1422 dated December 29, 2016), although a notification was not ordered since said amount was only verified in only one of the last three years. 

As it can be observed, the Commission has analyzed on a case by case basis without setting up specific thresholds and its criteria may be modified by the specifics of the case.

Based on the above, it can be observed that for the Commission to consider a presence in the country through exports, the following requirements must be met:

• Substantiality: While the traditional case law of the Commission points towards market share as an indicator of the presence or not of the undertaking in the country, it has also considered revenue as indicative. 
• Regularity: Consistency of the amounts being sold into the country over the last three years has been considered as another element that shows presence in the country.
• Predictability: While regular imports into the country are considered as indicative of presence, occasional or sporadic sales are considered as without effects in the country.

Economic concentrations require clearance by the Antitrust Commission if the aggregate volume of business generated in Argentina of the companies involved in the transaction exceeds 100,000,000 Adjustable Units (equivalent to ARS 16,255,000,000). This threshold is solely defined by sales and not by assets. In order to determine the volume of business, the combined gross sales of products and services and from direct subsidies during the preceding fiscal year arising from ordinary businesses, net of discount sales, value-added taxes and other taxes directly related to the volume of business must be considered. The turnover generated in Argentina by both the acquiring group (understood as all undertaking under the same control structure) and the target must be taken into account.

Filing is mandatory.

The Antitrust Law sets out a suspensive system according to which companies will not be able to close a transaction without the prior authorization of the Antitrust Commission. However, this system will enter into force one year after the creation of the new Antitrust Authority. Given that, as was mentioned above, the Antitrust Authority has not been created yet, the post-closing notification system remains applicable according to which the mandatory notice must be delivered prior to or within seven calendar days of the publication of any cash tender or exchange offer (i.e. the closing of the transaction). In this regard, it should be noted that there is a Draft Bill for the amendment of the Antitrust Law, which proposes that the pre-closing system for the notification of economic concentrations should become effective 90 days after its publication in the Official Gazette without any further requirements or conditions. On February 4, 2021, the Draft Bill was approved by the Senate, which added certain amendments to the project. Despite the lack of further developments within the Legislative Branch it should not be discarded as a plausible scenario that the Executive Power may decide to introduce the pre-closing system with a Decree of Necessity and Urgency. At the time of writing, there have been no developments in this regard and there is no visibility as to when this will be discussed.

No, notification can be carried out after closing.

The new merger control guidelines regulate both the Summary Procedure ("PROSUM") and the Ordinary Procedure. The Summary Procedure is for those economic concentrations with lower probabilities of being subject to the prohibition in Section 8 of the Antitrust Law. Parties may choose this procedure by submitting Form F0. If the Antitrust Commission deems it necessary, it will request the parties to adjust Form F0 within a period of 20 days. If the Antitrust Commission considers that the transaction does not qualify for the Summary Procedure, it will request the parties to submit Form F1, and the process will continue according to the rules of the Ordinary Procedure. If the Antitrust Commission considers it necessary to further analyze the transaction, it will request the parties to submit Form F2 within 30 days. The Antitrust Commission may also request additional information from the parties. Such requests suspend the deadlines in Section 14 of the Antitrust Law.

The Form F0 requests:

• Identification of the Parties: identity of the Parties involved, contact information, and legal representatives.
• Integrity Program: whether the companies have implemented an integrity program in accordance with Law No. 27,401, both in general and regarding antitrust.
• Framing of the notified economic concentration in the summary procedure: which criteria established by the Antitrust Commission the operation fits into for processing under the Summary
• Procedure, and grounds for such framing.
• The notified transaction: a legal and economic description of the concentration, including details of the legal acts involved, copies of relevant documents, information about shareholder agreements, and documents proving the closing date of the transaction.
• Information on the affected companies: control structure of the companies before and after the transaction, including details of holdings and economic activities carried out.
• Information on the relevant markets of the transaction: identification of the economic relationships involved in the transaction and definition of the relevant markets for each product.
• Market shares: market size, the shares of the companies involved and their competitors in the relevant markets, and the methodology used to measure those shares.
• Other procedural issues: it is possible to request confidential treatment for certain documents and information, and a non-confidential summary is required.

Form F1 requests:

• Information about the involved companies: analysis, reports, studies, and surveys related to the involved companies that are useful for assessing the impact of the economic concentration on competition, competitors, and market conditions.
• Information on the relevant markets of the transaction: identification and description of the included products, specifying their type, brand, and main characteristics. It should also indicate the geographic areas in Argentina where these products are offered. It includes both demand-side and supply-side substitution.
• Quantitative market information: competitors with more than 5% market share in each relevant market and their contact information; chambers or business associations they belong to.
• Information on the production process: a brief description of the production process of the involved products and substitute products, indicating whether the involved companies produce them for third parties or outsource part of their manufacturing.
• Other aspects of market functioning: whether new competitors have entered, new product launches, or repositioning of existing products in the past three years; market evolution in terms of size, prices, new products, and technologies, among other variables.
• Authorizations to exchange information with foreign competition authorities: if the operation has been notified in other jurisdictions, parties must attach the corresponding authorizations to exchange information with the competition authorities of those jurisdictions.

Form F2 requests:

• Relevant product / geographical market: including both demand-side substitution and supply-side substitution.
• Qualitative and quantitative market information: volume of sales for the products involved, exports, imports, pricing policies, as well as factors influencing these decisions.
• Production capacity: maximum production capacity of the products involved in the last 3 years and potential projects to increase such capacity.
• Countervailing purchasing power: important suppliers of inputs and raw materials, as well as the most relevant customers in terms of billing.
• Differentiated products: the percentage of demand that would shift to other products involved in case of price increases and the degree of product differentiation.
• Production costs: the average unit cost structure for the products involved, including fixed and variable costs.
• Market entry and exit: entry of significant competitors in the last 5 years and estimation of their current market share; probability of future market entries and estimation of the timeframe in which they could occur; key factors influencing market entry.
• Research and development: research and development activities carried out by the companies involved in the relevant markets; analysis of trends in these markets, technological evolution, companies’ planning and priorities for the next three years.
• Benefits of the transaction to the general economic interest: expected efficiency gains resulting from the concentration; identification of benefits such as job creation, income, import substitution, investments, environmental care, and gender policies, establishing parameters and measures to evaluate their long-term sustainability, and specifying the geographic and productive areas where they will have an impact.
• Information and internal documentation regarding the notified operation: provision of documents on the notified operation and its effects in Argentina, such as reports, minutes, presentations, internal or external reports, business programs, and business plans.

The Antitrust Commission will issue the technical criteria to determine in which cases the economic concentrations notified under the terms provided in Section 9 of the Antitrust Law may qualify for the Summary Procedure ("PROSUM"). But at the time of writing, they are still pending for publication.

The new Antitrust Law provides that when filing a concentration, the notifying parties must pay a fee that can range from 5,000 Adjustable Units (equivalent to ARS 276,450) to 20,000 Adjustable Units (equivalent to ARS 1,105,800). However, this fee remains to be set out by the Executive Power. At the time of writing, there is no visibility as to when this fee will enter into effect. 

The Antitrust Law provides that the Antitrust Commission has to issue a decision within 45 days after the notification or the transaction will be deemed tacitly approved. Pursuant to Resolution 905/2023 once the submission is made, the 45-day period in Section 14 of the Antitrust Law will not begin until the parties have proven their invoked legal capacity, submitted translated documents formalizing the transaction, or committed to providing information on any aspect of Form F1 or F2. Once the Antitrust Commission requests the submission of Form F1 or F2, the deadline will be interrupted, and computation will restart once the parties submit the required form. Deadlines will be suspended when the Commission requests additional information, as well as when determined by a grounded administrative act. Spontaneous submissions the parties make without prior request of the Antitrust Commission will also interrupt the computation of deadlines. Under this ‘stop-the-clock’ interpretation, the current average review time frame has been of 18 months without leaving the F1 Form stage. However, the Antitrust Commission has significantly shortened these review timeframes regarding new and non-material cases, in which scenario shorter reviews are to be expected (approximately six months). Material cases remain with a protracted review, averaging 12 months. Should the Antitrust Commission consider that the transaction has the potential to restrict competition, it must communicate in writing (Statement of Objections) its objections and summon a special hearing to consider the remedies. In these cases, the term to resolve is extended by up to 120 additional business days.

As set out by Resolution 208/2018, the analysis by the Commission covers the following issues:

• Definition of the relevant market;
• Identification of companies operating in the relevant market;
• Determination of market shares;
• Analysis of the concentration and market shares (by means of HHI calculation but with no specific thresholds);
• Evaluation of the theories of harm (unilateral and coordinated effects); 
• Barriers to entry;
• Competition from imports;
• Countervailing purchasing power; 
• Ancillary restraints; 
• Efficiency gains; 
• Failing firms; 
• Possible vertical effects; and
• Conglomerate transactions.

The Antitrust Commission carries out a substantive analysis in all merger control transactions subject to review, even in those cases in which there would be no overlap of markets or a substantive increase in market shares.

Pursuant to Section 14 of the Antitrust Law, the Antitrust Commission must decide whether to: 

• Approve the transaction without conditions, which entails full clearance if the transaction does not harm the general economic interest;
• Approve the transaction subject to the imposition of remedies if the transaction is considered to generate competitive concerns as regards specific markets or products. Should the Antitrust Commission consider that the notified transaction may restrict or distort competition – prior to the issuance of its final decision – it must communicate in writing its objections to the parties (Statement of Objections), and summon a special hearing to consider the remedies; 
• Upon the finalization of the negotiation of remedies, the transaction will be approved under the terms of Section 14(b) of the Antitrust Law, conditioning the approval of the transaction to the performance of the remedies. Once the parties have executed those remedies, they will have to prove it to the Antitrust Commission, so as to obtain a decision from the regulator under Section 14(a), which entails a full clearance. There is no specific time frame for the divestment, although the Antitrust Commission usually sets out an average time frame of 12 to 18 months for it to take place; or
• Order the rejection of the transaction. If the transaction is deemed to harm the general economic interest, the Commission can carry out its rejection pursuant to Section 14(c) of the Antitrust Law.

Yes, parties can proactively offer commitments to the Antitrust Commission to remedy identified competition concerns. The Antitrust Commission could impose either structural remedies (which have mostly dealt with specific divestments as regards certain products or production lines) or behavioral ones (mostly related to pricing matters, such as a price monitoring system for a period of time or access to supply to downstream competitors). In this regard, it is important to highlight that should the Antitrust Commission order a specific divestment, the buyer would decide to which company it would sell those assets and the commercial terms for such ulterior transaction. The sole participation of the Antitrust Commission in that divestment would be as regards the approval of the entity that will acquire those divested assets, determining whether it will be a suitable candidate for the divestment or not. If the Antitrust Commission approves the candidate and after the buyer performs the required divestment, the Antitrust Commission would order a full clearance under Section 14.(a) of the Antitrust Law.

It should be noted that the Antitrust Law provides the Antitrust Commission the power to issue a Statement of Objections and convene a special hearing to analyze the possible measures to mitigate the negative effect of the concentration, initiating a period of negotiation of formal remedies. Therefore, although the parties can offer mitigation or remedies at any stage of the procedure, formal negotiations may only take place by means of a Statement of Objections previously issued by the Antitrust Commission.

The sanction for gun-jumping (once the suspensive system enters into force) and/or late filing (currently applicable under the post-closing system): if the parties do not comply with the mandatory notification, they will be subject to fines of up to 0.1 percent of the national consolidated volume of business per day of delay calculated from the maturity of the obligation to notify. In case this method of calculation of the fine is not viable, the fine shall be up to 750,000 Adjustable Units (ARS 121,912,500) per day of delay. In addition to this, Section 9 of the Antitrust Law sets out that if a transaction that meets the notification criteria has not been approved by the Antitrust Commission, it will not generate effects in relation to the parties or third parties.

As mentioned in our response to "Provide the time in which a filing must be made.", the new Antitrust Law sets out a suspensive system, but until it enters into force, the post-closing notification system remains applicable. Therefore, there are currently no penalties for closing before clearance, as long as the notification is carried out within the deadline. As mentioned in our response to "Is there an automatic waiting period? If so, please specify.", the Antitrust Commission has considered that even though the transaction may not generate effects, the parties are authorized to close it, subject to the condition that should the Antitrust Commission reject the transaction, the parties would have to unwind it.

No, the agency cannot review and/or challenge mergers that are not notifiable (i.e. do not meet the notification threshold).  However, the agency is currently analyzing the possibilities to do so, but at the time of writing, there have been no further developments in this regard.

If the transaction should have been reported because it met the requirements, it can start a Diligencia Preliminar. However, if the thresholds or other requirements were not met, there are no existing procedures for challenging unnotified transactions.

As of late, the Antitrust Commission has been very active. There has been a surge in the issuance of Statement of Objections, a report issued by the Antitrust Commission after the Form F1 phase to inform the parties of a transaction of competition concerns that may arise in a particular market or markets. In this regard, certain aspects of the pre-closing system can be seen, without it being the applicable system, because of the precautionary measures that are imposed through this Statement of Objections by the Antitrust Commission to neutralize the anti-competitive effects that are formally challenged. To date, a total of eight transactions have been the subject of a Statement of Objections in the course of 2022 and 2023.

In addition, the Secretary of Trade of the Ministry of Economy issued the new merger control guidelines for the notification of economic concentrations pursuant to Resolution 90/2023, which in turn replace the guidelines set forth in Resolution 40/2001, that have been in effect for more than twenty years. The purpose of these guidelines is to regulate the procedure for notifying the economic concentration transactions in Section 7 of the Antitrust Law.

The regulation brings novelties and greater clarity to various stages of the notification process. One of the most important points is the Summary Procedure ("PROSUM") as an alternative to the ordinary procedure. A specific Form F0 has been created for this specific purpose. In this respect, the publication of the technical criteria that will determine under which circumstances an economic concentration is eligible for the Summary Procedure is still pending.

Furthermore, the Antitrust Commission has been active in its late filing enforcement practice and has published a report on late filing cases on its official website. This highlights the Antitrust Commission's recent commitment to enforcing late filing sanctions. In the last three years a total of twelve late filing fines have been imposed, representing a significant increase in the number of sanctions.

See response to "Describe, briefly, your assessment of the regulatory agency's current attitudes/activities, including enforcement trends and recent developments." and "Provide the time in which a filing must be made" above.