Bill for the enactment of a new Antitrust Law

On December 27, 2023, the newly elected government of Argentina has sent a mega bill to Congress. Among the wide-ranging proposed legal changes, the bill proposes the repeal of the current Antitrust Law passed in 2018, and to adopt a new antitrust law, which if passed into law will lead to the following modifications:

1. Significant increase of the notification thresholds: the bill raises the combined Argentinean annual net sales threshold from 100 million administrative units to 500 million administrative units. However, the bill fails to determine the value of the administrative unit.
2. Adoption of an ex-ante or suspensory merger control regime: economic concentrations meeting the notification thresholds cannot be implemented without prior antitrust approval. Contrary to the current Antitrust Law, there is no foreseen transition period, therefore, the ex-ante merger control regime would enter into force the day after the enacted law is published in the Official Gazette.
3. Voluntary notification of mergers that fail to meet the notification thresholds: the bill allows the merging parties to submit a voluntary notification for those economic concentrations which are not caught by the filing thresholds. The voluntary notification could be made anytime up to 15 business days after the closing date of the transaction.
4. Ex-officio review of mergers that do not meet the notification thresholds: the new antitrust authority could review economic concentrations that fail to meet the notification thresholds anytime up to 180 business days after the closing date, for those transactions that could reasonably be understood to lead to the creation or strengthening of a dominant position.
5. Creation of a new antitrust authority: the bill provides for the creation of a new antitrust institutional framework, composed of: (a) a Markets and Competition Agency, entrusted to a Secretary, which would have the power to investigate conducts and to approve, reject or impose undertakings to economic concentrations; and (b) an Antitrust Tribunal, to be composed of five members, three members proposed by the Executive Power, and two members proposed by the first minority in the Senate and appointed by the President of the Senate, which shall adjudicate conduct cases and review the decisions taken by the Markets and Competition Agency in relation to mergers.
6. Appointment of 15 independent competition academic experts to act as “associated members” to the Antitrust Tribunal in order to issue opinions in certain mattersthe Antitrust Tribunal shall appoint 15 external competition experts, either Argentinean or foreigners, to act as “associated members”. In particular, the opinion of an expert shall be required by the Antitrust Tribunal in the following cases: (i) when the Antitrust Tribunal decides to issue a formal accusation in a conduct case; ii) when the Antitrust Tribunal has to review the rejection of a merger or the undertaking imposed by Markets and Competition Agency on a merger; and (iii) when the Antitrust Tribunal has to review the appeal lodged against the decision issued by the Markets and Competition Agency establishing that a merger is subject to a notification obligation.
7. Introduction of coordinated boycotts as a form of cartelized conduct: the bill expressly includes sellers and purchasing boycotts between competitors as a form of cartel.

The bill is expected to be discussed during the extraordinary sessions that will take place until January 31, 2024.