We are doing a deal: must it be notified to the antitrust authority?
Certain mergers and acquisitions must be notified to the antitrust authority, before or after closing, where they exceed the thresholds set by law. Failing to notify when required may lead to penalties. It should be analysed at the outset of the deal.
Merger control (Act 27,442) assesses whether a transaction may harm competition; it is different from the investigation of anticompetitive conduct (cartels, abuse of dominance).
- Determine whether the deal is a 'concentration' caught by the law
- Check whether the thresholds in force are exceeded
- Determine whether filing is pre- or post-closing under the regime
- Gather the required economic and corporate information
- Assess competition risks and possible commitments
- File the notification within the deadline
Which deals are reviewed
The law treats as a concentration mergers, acquisitions of control, transfers of going concerns and certain deals that grant influence over another firm. Those exceeding the turnover thresholds set by the rules in force are reviewed.
The procedure
The notification is filed with the enforcement authority together with economic and corporate information on the parties. The authority may clear, condition (with commitments) or block the deal. It is advisable to assess the risk before signing.
Why analyse it early
The competition analysis affects the design and timing of the deal: a notifiable transaction should not close ignoring the control, given the risk of penalties and of having to unwind effects.
Common mistakes
- Closing a notifiable deal without analysing the control
- Assuming the thresholds are not met without checking
- Not building the authority's timelines into the deal schedule
- Ignoring possible commitments or conditions
Applicable rules
- Share purchase — the underlying deal (ES).
- Sec. 82 CA — merger.
Frequently asked questions
Is every merger or acquisition notified?
Is the filing before or after closing?
What if a required notification is not made?
Does your deal need clearance?
We analyse whether a filing is required and assist you before the antitrust authority.
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