The Senate of Argentina approved on February 4, 2021, a draft bill (the “Bill”) to amend the Argentine Antitrust Law of 2018 (the “Antitrust Law”).
The Bill introduces several changes to the Antitrust Law, most importantly:
- Ex ante merger control – The reduction of the suspension term for the pre-merger control regime to enter into force. The Antitrust Law had suspended the ex ante regime until one year after the establishment of the National Antitrust Authority. The Bill now establishes that the ex ante regime will start 90 business days after the approved Bill is published in the Official Gazette. Therefore, if the House of Deputies approves the Bill in the upcoming weeks, the ex ante regime will start in mid-July 2021 approximately and no transaction subject to mandatory antitrust approval would be able to close after mid-July 2021 without prior clearance from the Argentine Antitrust Authority (the “Antitrust Authority”).
- Elimination of leniency programme and settlements – The Bill completely revokes the leniency programme established in the Antitrust Law and the possibility for the parties of an investigation to negotiate settlements with the Antitrust Authority. The leniency programme was introduced in 2018 though there are no known cases of any leniency application. The settlement procedure for conduct cases was introduced in the 1980 reform and has been used in various cases, including in the Prisma case of 2017 regarding the electronic payment systems.
- Politization of the National Antitrust Authority – The Bill introduces several changes in order to allow greater political influence in antitrust cases. These changes include, among others, a flexibilization in the appointment process of the members of the National Antitrust Authority; the relocation of the National Antitrust Authority under the administrative influence of the Secretary of Domestic Trade; and the prohibition to appoint lawyers or economists with prior antitrust experience in the private sector during the past 3 years.
Other relevant changes introduced by the Bill include:
- Elimination of the tacit approval and the fast-track mechanism in merger control cases.
- Creation of a Secretariat of Market Investigations and Competition Advocacy
- Elimination of the consultation process for cases of agreements among competitors.
- Elimination of the confidentiality of the conduct investigation procedures.
The Bill will now be passed to the Chamber of Deputies for its consideration and is among those included by the government of Argentina to be dealt with during the extraordinary sessions of Congress. Therefore, the Chamber of Deputies does not have to wait until Congress reconvenes on March 1, 2021 in order to consider the Bill.
