The National Communications Agency (hereinafter, “ENACOM”) issued Resolution No. 1297/2021, published in the Official Gazette on September 6, 2021 (hereinafter, the “Resolution”). This regulation approves the Instructions governing the procedure for the approval of the transfer of ownership, assignment of shares and/or membership quotas of audiovisual communication service licenses in favor of individuals, for-profit legal entities, and non-profit legal entities; transfer of ownership or assignment of shares or quotas due to the death of the license holder or the licensee’s partners; and capital increases that result in a change in shareholding.
General obligations
The transferring or assigning individuals or legal entities and their respective members must create TAD (Remote Procedures) User Accounts in order to electronically sign the documentation required under these instructions.
Applications must be made exclusively through the TAD electronic platform of the Electronic Document Management System, under the procedure “Transfers of Audiovisual Communication Service Licenses,” by accessing the sub-procedure[1] that corresponds to each case.
Through the TAD, the signatures included in the affidavits that must be attached will acquire the status of originals, in accordance with the provisions of Articles 15(e) and 17(b) of the Administrative Procedures Regulations, Decree No. 1,759/72 – T.O. 2017 and 41 of the regulations for the use of the Electronic Document Management System, approved by Resolution No. 90-E/2017 of the then Secretariat of Administrative Modernization.
Obligations of the transferee
The transferee of a license for the provision of an audiovisual communication service must:
a) Prove, within ninety (90) calendar days of notification of the administrative act approving the transfer of ownership, extendable for the same term, the effectiveness of the irrevocable/personal contributions for the realization of the committed investment.
b) Submit, within ninety (90) calendar days of notification of the administrative act approving the transfer or assignment, extendable for the same period, the final technical documentation or technical inspection certificate, as applicable.
c) In the event that the rights management entities and/or unions have reported the existence of liquid and enforceable debt or the existence of tax or social security debt and/or fines is verified, they must regularize their situation within ninety (90) calendar days from the notification of the administrative act approving the transfer.
d) Failure to comply with any of the obligations defined in this article shall result, after formal notice of default, in the expiration of the award.
Procedure
1- Once the Electronic File generated by the TAD user has been submitted, the Transfers Area, under the National Directorate of Audiovisual Services, shall prepare a preliminary report on the license that is the subject of the application, which shall also indicate all pending procedures so that, if feasible, they may be resolved jointly. Compliance by the licensee with the submission of the required Affidavits will be verified. In the event that these are not submitted in a timely manner, the applicant will be required to comply within thirty (30) days, under penalty of rejection of the application.
2- The competent areas of the National Directorate of Audiovisual Services will evaluate the documentation submitted in order to determine the admissibility of the application, in accordance with compliance with:
a) The legal and personal conditions established in Articles 24, paragraphs a, b, c, f, h, and I, 25, paragraphs a, b, c, d, e, 26, and 45 of Law No. 26,522 and its regulations approved by Decree No. 1,225/10, through the submission of the relevant affidavits and accompanying documentation.
b) Financial conditions relating to proving the origin of funds and verifying sufficient financial capacity, which shall be understood as proof of net assets equivalent to at least one (1) times the total amount of the investment made and/or to be made.
The competent area will verify compliance with the provisions of Articles 24, subsection g) and 25, subsection f) of Law No. 26,522, regarding not being a debtor of tax, social security, and social security obligations, in accordance with AFIP General Resolution No. 4164/2017.
In the event that the existence of tax or social security debts and/or fines is verified, the situation must be regularized within ninety (90) calendar days from the notification of the administrative act approving the application. This provision shall not apply when the licensee has been summoned in a previous administrative act, in which case the existence of debt under the terms indicated shall make it impossible to approve the transfer and/or assignment application.
- Notification of observations
Once the evaluations have been completed, the National Directorate of Audiovisual Services shall notify the transferor and the transferee in their respective TAD User accounts of the observations made on the submission, for a single period of thirty (30) calendar days, under penalty of rejecting the application.
In addition, said notice shall require compliance with obligations related to the settlement of tax and social security debts and/or debts owed to rights management entities and/or unions, with respect to those assignees who have been subject to similar notices in previous administrative proceedings.
- Management Entities and Unions
The National Directorate of Audiovisual Services will verify compliance with the requirements established by Articles 24(g) and 25(f) of Law No. 26,522, as applicable.
To this end, it shall require management entities and unions to indicate whether applicants have liquid and enforceable debt, reporting the amount and period to which it corresponds, within a period of fifteen (15) calendar days. Failure to respond or comply with the terms of the request shall imply that the requirement in question has been met.
In the event that the rights management entities and/or unions have reported the existence of liquid and enforceable debt, they must regularize their situation within ninety (90) calendar days from the notification of the administrative act approving the application.
This shall not apply when the licensee has been summoned in a previous administrative act, in which case the existence of debt under the terms indicated shall make it impossible to approve the application for transfer and/or assignment of membership quotas.
The Transfers Area will require the intervention of the National Directorate of Audiovisual Services in order to confirm that there are no outstanding debts or fines under Law 26,522, only in the case that the service involved in the request in question has provisional authorization and/or definitive authorization to begin regular broadcasts.
Once the procedure has been completed, the transfer of ownership will be approved or rejected, as appropriate.
Supporting documentation
1. Transfer of license to a natural person
The application shall be accompanied by the affidavits and documentation detailed below[2]:
- Affidavit “Request for approval”;
- Affidavit “Description of transfer of ownership”;
- Affidavit “Conditions of admissibility and multiplicity of natural persons”;
- In addition, if acting through a representative, the instrument certifying the representation invoked with sufficient and specific powers to carry out the legal transaction in question must be attached.
2. Transfer of License to a for-profit legal entity
In addition to the affidavits detailed in the previous section, if the transferee firm is composed of other for-profit or non-profit legal entities, the corresponding affidavits must be submitted Affidavit “Conditions of eligibility and multiplicity of the for-profit legal entity” and/or Affidavit “Conditions of admissibility and multiplicity of the non-profit legal entity,” as applicable, for each of them up to the last level of integration.
In “Attached Documentation,” the following must be included with respect to the for-profit legal entity assignee, in the corresponding subsection:
a) Instrument certifying the representation invoked with sufficient and specific powers to carry out the legal transaction in question, in the event of acting through a proxy.
b) Bylaws and amendments duly registered with the corresponding registry. [3]
In the event that the member(s) of the for-profit legal entity transferee undertake(s) to make an irrevocable contribution in favor of the latter, the Minutes of the Shareholders’ Meeting or Partners’ Meeting must be attached, stating the acceptance of both the contributor and the recipient, including the manner and terms in which such contribution will be made. The commitment may be subject to authorization of the requested transfer. Contributors must meet the requirements for individuals and/or legal entities, and must prove a computable net worth equal to one (1) times the total amount they commit to contribute.
3. Transfer of license to a non-profit legal entity
In addition to the Affidavits in section 1, an Affidavit of “Members of the administrative and supervisory bodies” must be attached. [4]
In “Attached Documentation,” the following must be included in the corresponding subsection:
a) Instrument certifying the representation invoked with sufficient and specific powers to carry out the legal transaction in question, in the case of acting through a representative.
b) Articles of incorporation and registered amendments.
c) Minutes of appointment of authorities with a current mandate.
4. Transfer of license to a non-profit legal entity
In addition to the Affidavits in section 1, an Affidavit “Description of the transfer of shares or membership quotas” must be included.
4.1. Transfer of shares or quotas to individuals
Additionally, the following must be included:
a) Affidavit “Conditions of admissibility and multiplicity of the individual”;
In “Attached Documentation,” the instrument certifying the representation invoked with sufficient and specific powers to carry out the legal transaction in question must be included with respect to the human assignee, in the event of acting through a proxy. [5]
4.2. Transfer of shares or equity interests to a for-profit legal entity
In addition, the following must be included:
a) Affidavit “Conditions of admissibility and multiplicity of the for-profit legal entity”;
If the transferee firm is made up of other for-profit or non-profit legal entities, the corresponding affidavits “Conditions of admissibility and multiplicity of the for-profit legal entity” and/or “Conditions of admissibility and multiplicity of the non-profit legal entity” must be submitted, as applicable, for each of them up to the last level of integration.
b) Affidavit “Conditions of admissibility and multiplicity of the natural person,” for each of the natural persons who are members of the transferee for-profit legal entity, fully completed and signed by the natural person who is a partner. An Affidavit “Conditions of eligibility and multiplicity of natural persons” must be submitted for each of these members, fully completed and signed by the natural person whose details are being declared.
In “Attached Documentation,” the following must be included with respect to the for-profit legal entity that is the transferee, in the corresponding subsection: a) Instrument certifying the representation invoked with sufficient and specific powers to carry out the legal transaction in question, in the event of acting through a representative. b) Articles of incorporation and amendments duly registered with the corresponding registry. [6]
4.3. Transfer of shares or membership quotas to non-profit legal entities[7]
Additionally, the following must be included:
a) Affidavit “Conditions of admissibility and multiplicity of the non-profit legal entity”;
If the transferee non-profit legal entity is composed of other non-profit legal entities, the corresponding affidavits of “Conditions of admissibility and multiplicity of the non-profit legal entity” must be submitted for each of them up to the last level of integration.
b) Affidavit “Members of the administrative and supervisory bodies.”
The following must be included in “Attached Documentation”:
a) Instrument certifying the representation invoked with sufficient and specific powers to carry out the legal transaction in question, in the event of acting through a proxy.
b) Articles of association and registered amendments.
c) Minutes of appointment of authorities with a current mandate.
5. Transfer of ownership due to death
5.1 Transfer to a single heir
a) Sworn statement “Request for approval”;
b) In addition, you must submit the documentation detailed in Transfer to a Natural Person.
The following must be included in “Attached Documentation”:
a) Instrument certifying the representation invoked with sufficient and specific powers to carry out the legal transaction in question, in the event of acting through a representative.
b) Declaration of heirs.
c) In the event of verification of the transfer of inheritance rights and shares, the approving court decision must be attached.
5.2 Transfer in favor of a For-Profit Legal Entity
The heirs of the deceased licensee may form a company under the terms of Article 51 of Law No. 26,522.
The application shall be accompanied by the affidavits and documentation detailed below:
a) Affidavit “Request for approval of transaction”;
b) In addition, the incorporated firm must submit the documentation corresponding to Transfer in favor of a For-Profit Legal Entity.
The following must be included in “Attached Documentation”:
a) Instrument certifying the representation invoked with sufficient and specific powers to carry out the legal transaction in question, in the event of acting through a representative.
b) Declaration of heirs.
c) Duly registered articles of association.
d) Judicial approval of the articles of association. In the event of a transfer of rights and inheritance shares, the judicial approval resolution must be attached.
6. Corporate restructuring
a) Affidavit “Request for approval of transaction”;
b) In the event that the new member is a natural person, additionally, the documentation corresponding to the transfer of shares or membership quotas in favor of the natural person.
The following must be included in “Attached Documentation”:
a) Instrument certifying the representation invoked with sufficient and specific powers to carry out the legal transaction in question, in the event of acting through a proxy.
b) Declaration of heirs, in the event of corporate restructuring due to death.
c) In the event of verification of the transfer of inheritance rights and shares, the approving court decision must be attached.
In the event that the applicant is a for-profit legal entity, it must also submit the documentation corresponding to the Transfer of Shares or Social Quotas in Favor of a For-Profit Legal Entity.
The following must be included in “Attached Documentation”:
a) Instrument certifying the representation invoked with sufficient and specific powers to carry out the legal transaction in question, in the event of acting through a proxy.
b) Declaration of heirs, in the event of restructuring due to death.
c) Duly registered articles of association.
d) Judicial approval of the articles of association, in the event of restructuring due to death.
e) In the event of a transfer of inheritance rights and shares, the approving court ruling must be attached.
7. Capital increase
When the capital increase involves a change in the shareholding structure, the licensee or partner of the licensee up to the last level of integration must submit:
a) Affidavit “Request for approval of transaction”;
b) Affidavit “Conditions of admissibility and multiplicity of the for-profit legal entity.”
The following must be included in “Attached Documentation”:
a) Instrument certifying the representation invoked with sufficient and specific powers to carry out the legal transaction in question, in the event of acting through a proxy.
b) Statute from which the capital increase arises, duly registered.
The partner or partners whose participation is increased must prove their financial capacity and the origin of the funds for the increase, in the proportion that corresponds to them, and must submit:
7.1 In the case of a natural person:
– Certification of Assets and Debts of the individual whose participation is increased, signed by a Certified Public Accountant with their signature certified by the respective Professional Council, detailing the declared assets and debts, their valuation, and ownership, dated no more than ninety (90) days prior to the date of submission. If the person is the spouse, owner, or partner of an audiovisual communication service, the accountant must report the nature of the declared assets.
– Accounting certification of the origin of the funds of the individual whose participation is increased, signed by a certified public accountant, with their signature certified by the respective professional council, detailing the documentation that would give rise to the funds used for the payment of the respective increase.
7.2 In the case of a for-profit legal entity:
– Latest financial statements with an independent auditor’s report, with signature certified by the respective professional council. If the financial statements are more than one hundred and twenty (120) days old from the date of submission, “Interim Financial Statements with Review Report” must be attached, dated no more than one hundred and twenty (120) days prior to the date of submission.
In all cases, the signature of the professional in Economic Sciences must be certified by the respective Professional Council. In the event that the member or members of the for-profit legal entity whose participation is increased undertake to make an irrevocable contribution to the entity, the Minutes of the Shareholders’ Meeting or Partners’ Meeting must be attached, stating the acceptance of both the contributor and the recipient, including the manner and terms in which the contribution will be made. The commitment may be subject to the authorization of the requested transfer. Contributors must meet the requirements for individuals and/or legal entities and must prove a computable net worth equal to one (1) times the total amount they commit to contribute.
– “Accounting Certification of the Origin of Funds” from the firm whose participation is increased, signed by a Certified Public Accountant, with his or her signature certified by the respective Professional Council, detailing the documentation that would give rise to the funds committed in the respective increase.
