What are the key features of the new regulation for merger control procedures?

What are the key features of the new regulation for merger control procedures?

The text, recently approved by the Ministry of Economy, accepted some important points raised during the consultation process, such as the reduction of information required for a simplified procedure; however, it maintains a significant part of the original proposal.

On 1 June 2017, the obligation introduced by the last reform of Decree Law 211, that regulates free Competition (“DL 211”) enters into force, by virtue of which companies are obligated to inform the National Economic Prosecutor (Fiscalía Nacional Económica (“FNE”)) prior to perfecting economic concentration transactions that comply with certain requirements contained in Article 48 of DL 2011, which may also be informed voluntarily if the requirements are not fulfilled.

In order to regulate the information that must be submitted with the notification of a concentration transaction, the Ministry of Economy, following a prior public consultation process, issued Decree Nº33 that approves the regulation on the notification of a concentration transaction (the “Regulation”). The information required pursuant to the Regulation is more extensive that that currently required under the Internal Guide for the Analysis of Horizontal Concentration Transactions dictated by the FNE and by virtue of which this latter currently analyzes concentration transactions that are notified to it on a voluntary basis.

In general terms, the authority accepted the suggestion to protect the confidentiality of the information provided by the parties, including a new Article 10 that has the objective to regulate the public version of the documents that are submitted when certain confidential information is requested to be maintained as such, that is also regulated in Article 55 of DL 211.

As regards the criticism regarding the excessive amount of information required, the authority responded that the documents requested are those that are considered as a minimum to be able to carry out a preliminary analysis of the informed concentration transaction, which is consistent with comparative experience. In any case, it points out that Article 3 of the Regulation provides the possibility to exempt notifying parties from contributing certain documents upon a justified request when the information is not reasonably available or when it is not necessary, relevant or related to the analysis of the transaction by the FNE. Furthermore, the new drafting of Article 7 requires an even lesser amount of documentation in procedures of simplified notification, which takes place when the concentration transaction falls within the thresholds set forth in Article 4 of the Regulation.

With respect to the need to define or limit terms and ambits of application, the Ministry of Economy alludes to the collaborative spirit that this type of procedure entails, therefore, it is hoped that the notifying parties will approach the FNE when they have doubts at the time of notifying and the authority can provide the clarification prior to the notification.