In Honduras, mergers are regulated in the Commercial Code, Decree #73-1950, in Articles 344-354 and in the Defense and Promotion of Competition Law, Decree #357-2005. This law also has regulations in the Executive Accord #001-2007.

Any economic concentration must be notified to the Antitrust Authorities: Comisión Para la Defensa y Promoción de la Competencia ("CDPC").

Not applicable. 

Yes. They are set out in the Defense and Promotion of Competition Law (Decree #357-2005) [LDPC].

According to the Antitrust Law, any company that, through any title, participates in economic activities within Honduras must comply with the rules established in such law. It expounds upon this premise by stating that the law applies to any nonresident company that enters activities, contracts, arrangements, agreements, practices, acts or businesses that produce effects in Honduras.

The Law defines mergers as any change in control in one or more companies through shareholding, management control, acquisition of property or any right over shares or equity or debt securities that cause any kind of influence on corporate decisions or any act under which group shares, social shares, trusts, or assets that are made between suppliers, customers, or any other economic agent.

Economic concentration is understood as the taking or change of control in one or several companies through shareholding, control of the administration, merger, acquisition of property or any right over shares or capital participations or debt securities that cause any type of influence on corporate decisions or any act or acts by virtue of which shares, partnerships, trusts or assets are grouped between suppliers, customers or any other economic agent.

No, only if it passes the relevant thresholds.

There are two procedures or stages: notification and verification.

If the transaction exceeds at least one of the thresholds provided by the authority, it will also be subject to a verification stage. If it does not exceed any of the thresholds, the antitrust authority will issue a resolution establishing that the transaction is not subject to further verification, and you may move forward with the transaction and transfer of shares.

The verification stage, on the other hand, implies that the antitrust authority analyzes possible negative effects in the relevant market in Honduras before its authorization. As expected, if the transaction goes to a verification stage, the authorization process will be longer.

The thresholds are as follows: 

• Assets: 4,000 x annual minimum wage
• Turnover: 5,000 x annual minimum wage
• Participation in relevant markets is greater than 25%

The filing is mandatory.

Such law establishes that mergers must be notified to the Antitrust Commission before the transaction produces legal effects in Honduras. To avoid delaying the transaction, a common practice is to execute an Agreement and Plan of Merger in which you include a clause that states that the effectiveness of the transaction is subject to the antitrust authority clearance. However, no effective transfer of the company should take place before receiving clearance.

In accordance with the provisions of the Law, the Competition Commission has a period of 45 business days to authorize, deny or condition a request based on the results of the technical, legal, and economic analysis of the impact that the operation may have in the Competition.

To enable prior verification of an economic concentration, the economic agents involved shall provide the Commission with the following information:

1. The general information of the economic agents that notify the concentration; and of those who participate in it directly;
2. The financial statements of the economic agents for the fiscal year of the previous year, certified by a certified public accountant;
3. Description of the economic concentration, its objectives and type of operation, copy of the draft contract that will regulate the operation;
4. Description of the main goods or services produced or offered by each economic agent involved, the list of substitute goods or services, of the main economic agents not involved that produce or market them in Honduras, as well as their market share data; and,
5. Any other information determined by the Commission through regulations or resolution.

Yes, the economic agents involved in a concentration operation must pay a rate equivalent to 0.15% of the total value of the assets involved in the concentration operation, for the analysis to determine whether it complies with what is established in the law.

The amount of said rate must not exceed the total value equivalent to 250 monthly minimum wages. The payment receipt must be submitted to the Commission within 10 business days counted from the day following the notification of the admission of the request for the economic concentration operation.

The economic agent involved will request an opinion on the concentration project in accordance with the terms of Article 52 of the Law (Article added by Decree No. 4-2015).

The Commission may require additional data or documents, within 10 business days following receipt of the request; and,

From the date of receipt of the request or if additional data or information has been requested, from the date on which all additional data and documents are received to the satisfaction of the Commission, the Commission has a period of 45 business days to issue a resolution. If this period expires without such resolution having been issued, the proposed economic concentration will be understood to have been approved and may be carried out.

The Law establishes that practices may be prohibited due to their nature (Art. 5 LDPC) and according to their effect (Art. 7 LDPC). Practices by their nature (horizontal), are prohibited per se and refer to any type of agreement or practices between competing or potential economic agents, whose purpose or effect, among others, is to set prices or discounts, restrict production-marketing or share the market.

On the other hand, the prohibited practices according to their effect (vertical), are analyzed under the "rule of reason", that is; the restrictive effect that the practice is causing to free competition is analyzed case by case. They are supposed to be carried out by an economic agent that has a significant market share and can be considered non-restrictive if it is shown that they generate increases in economic efficiency and consumer welfare.

The investigation of said practices is a legal attribution of the Competition Commission established in Article 49 of the Law that governs the matter and it can originate ex officio or by complaint.

The decisions adopted by the Antitrust authority can be: Favorable, Prohibited or Authorized with conditions for approval.

Even though it is not a statutory provision, the Commission is open to offers from the parties to remedy identified competition concerns. This may be observed in files of previously approved mergers.

The Commission shall impose by means of motivated resolution and considering the criteria of Article 39, a fine by an economic agent equivalent to three times the amount of the economic benefit obtained due to practices or conducts prohibited by Articles 5 and 7. In case it is not possible to determine the amount of the benefit, the Commission will fix a fine that in any case shall not exceed 10% of the gross utility in sales of the last fiscal year.

In case of an ex-post notification of a concentration operation, a lack of delivery or a delay in the delivery of the information solicited by the Commission, the same fine established in Article 41 will be imposed on the violator.

Notwithstanding the imposition of fines, the Commission will order the ceasing of the practices or conducts prohibited by the law.

The regulation of the Law will establish different degrees of the application of these penalties, taking into consideration the gravity of the conduct and the other parameters established by Article 39 of the Law.

The Commission, by means of motivated resolution, can apply successive sanctions to the economic agents and to the associations of economic agents from a Thousand Lempiras (L.1, 000.00) to Fifty Thousand Lempiras (L.50, 000.00) for every day of delay in the accomplishment of the resolution order, until a maximum of 30 calendar days, counted from the date of the notification of the resolution, in order to:

1. Put an end to the practices or conducts infringing the dispositions of the present law and its regulations;
2. Accomplish the imposed provisional measures and measures of precaution; and,
3. Fulfill the corrective measures applicable to an act of economic concentration or the order of partial or total deconcentration.

When a merger has not been subjected to prior verification and is presumed to restrict, diminish, damage or impede competition, the Commission, within a period not exceeding three months after the concentration or from the date on which it became aware of it,

It must initiate ex officio or at the request of a party, an investigation during which it must demand from the economic agents involved the information that is relevant.

When there are reasonable indications of a violation of the provisions of the competition law and its regulations, officials and employees designated by the Commission with the appropriate authorization may carry out investigations in the premises indicated in such authorization, without prior notification. The economic agents involved must allow free access to the premises and make available to the investigating commission all the necessary documents.

The Commission will initiate a procedure ex officio or at the request of a party.

Within ten days after the receipt of the complaint of an interested party, the Plenary shall issue a resolution that:

1. Warns the complainant to clarify or complete it
2. Orders the beginning of the preliminary investigation
3. Declare the complaint inadmissible when the facts reported are not provided for in the Law as restrictive practices

If the preliminary investigation determines sufficient indications of the existence of a restrictive practice, the commission’s plenary will order the sanctioning procedure to begin. If the alleged offender is one of the economic agents whose activities are regulated by special laws, resolutions or regulations, the corresponding oversight entity will be given procedural intervention.

The investigation will begin from the notification of the resolution that orders the opening of the investigation to the alleged offenders. Once notified, and during a period of 30 business days, the alleged offender must respond in writing to each of the facts expressed in the resolution that initiates the sanctioning procedure. Once the charges have been answered and the means of evidence proposed, the Commission will indicate the place, day and time for the practice of evidence, depending on the nature of the proposed means of evidence. The practice of the proposed and admitted evidence will be carried out within a term not exceeding 20 working days.

The Commission will notify the interested parties at least three business days in advance of the start of the necessary actions to practice the evidence that has been admitted. Once the practice of the evidence has been completed the Commission may order ex officio, within a term not to exceed 15 business days, the practice of any additional evidentiary diligence that it deems pertinent for the clarification of the facts that are the object of the procedure. The Commission, ex officio or at the request of the economic agents, will call the parties to the hearing where they must present their final arguments. 

If there are sufficient elements to establish the existence of prohibited acts and behaviors, the plenary will issue a final resolution in which it must decide on the existence or not of prohibited acts and behaviors, stating the grounds of fact, the matter of the act or proven prohibited behavior, the violated legal provisions, the elements of conviction, law, economic and technical according to which it is pronounced and others in which the responsibility of the offender is based.

In the event that the existence of prohibited acts or conduct is determined, the plenary may:

1. Order its cessation within a certain period;
2. Impose certain conditions or obligations on the offender in order to restore the situation prior to the illegal action and others that it considers appropriate, suitable and necessary to prevent it from continuing to happen;
3. Impose the sanctions provided by the Law; and,
4. Order the infringing party to publish in two newspapers with the largest circulation in the country, and at its cost, the final resolution.

If the appeal for reversal is not filed within the legal term, the resolution will remain final. Any fines must be paid within five business days after the notification of the resolution.

The Commission is alert to any anti-competitive practice that may lead them to unnotified mergers. Even though the Commission lacks the manpower and capacity to keep track of every merger, especially when these mergers do not involve the key participants in important industries, the existence of anticompetitive practices might give away a merger that was not authorized by the Commission. It is our opinion that the Commission is much more aggressive in investigating and sanctioning anti-competitive practices in comparison to unnotified mergers.