This article has been written by Vinay Yerubandi pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from LawSikho. This article has been edited by Amitabh Ranjan (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).
Table of Contents
Introduction
Peru had published its Merger Control Law (Law No 31112) on May 30th, 2021 and the provisions of this legislation have their effect from 14th June 2021. This is Peru’s First legislation to regulate competition concerns of all kinds of Combinations. The legislation defines these transactions as concentration operations. This law has a similar purpose as that of CCI (Procedure in regard to the transaction of Business relating to Combinations) Regulations, 2011 in India. This law laid down the provisions mainly for thresholds, jurisdiction, notification procedure, the review process, appeal and review, third party Rights, and enforcing authority under this legislation.
Enforcing authority
National Institute for the Defence of Free Competition and the Protection of Intellectual Property (INDECOPI) is the authority empowered under this law to regulate concentration operations. Competition Commission, an administrative body of INDECOPI is the competent body to issue first instance decisions. The Competition Commission is also empowered to issue guidelines regarding the correct interpretation of the law. If the Concentration Act involves companies that are regulated by any specific sectoral regulations, then the Competition Commission can also request the appropriate sectoral regulator to give non-binding reports consisting of the degree of concentration in that market and their technical opinion about the possible effect on competition.
Thresholds
The law provides for the transactions to be notified to the authority mandatorily. If a transaction is required to be notified to the authorities, then such transaction must not be consummated until the clearance from the authorities and if consummated, it will not have any legal effect and also be punishable with a fine. For a transaction to be mandatorily notified, the transaction should be covered under the purview of concentration operations and should meet the Jurisdictional thresholds. If the transaction meets these two conditions, then it shall be mandatorily notified to the competition commission before consummation.
Concentration operations
Law 31112 specifies the following transactions as concentration operations
- Merger.
- A Joint Venture, which is created with an intention to be fully functional and permanent.
- Acquisition of control, directly or indirectly over other companies. This included the acquisition of shares, voting rights or acquiring control through any kind of contract.
- Acquisition of productive assets that are operative in the previous 12 months, to which defined income volume can be attributable, has income generated in the previous one year and are capable of increasing market share of the acquirer.
Transactions exempt from concentration operations
There are certain transactions that were exempted from being considered as concentration operations. These are
- The corporate growth of an entity due to operations carried out exclusively within the same group;
- The internal corporate growth of an entity, regardless of whether it takes place through own investment or with resources of third parties that do not participate in the market;
- The corporate growth of an entity that does not produce effects in the markets within the domestic territory, either in whole or in part;
- Control acquired over an entity as a result of a temporary mandate conferred by law relating to the forfeiture or denunciation of a concession, asset restructuring, insolvency, creditors’ agreement or other similar procedure; and
- The temporary holding by credit, financial, insurance or capital market institutions of stocks or shares acquired for the purpose of resale, provided that no voting rights are exercised to determine the competitive behaviour of that undertaking.
Jurisdictional thresholds
For a transaction to be mandatorily notified under the new merger control law, two thresholds are required to be mandatorily met. These are Joint Thresholds and Individual Thresholds.
- Joint Thresholds: Sum of annual sales or gross income or asset value in Peru of all the companies involved transaction in the financial year previous to the year in which the transaction is entered shall be equal to or greater than 118,000 Unidad Impositiva Tributaria (UIT)
- Individual Thresholds: Annual sales or gross income or asset value in Peru of at least two companies that are involved in the transaction in the financial year previous to the year in which the transaction is entered shall be equal to or greater than 18,000 UIT individually.
*Unidad Impositiva Tributaria (UIT) is a reference unit set by the Peruvian Ministry of Economy annually to determine taxes, deductions, penalties, processing fees, fines, and others.
Whose financials are to be considered for jurisdictional thresholds?
The new merger control law of Peru states that the jurisdictional thresholds are to be calculated based on the financials of the companies involved in the concentration operation in the local market.
- In the case of a Merger or Joint Venture, the financials of all the companies involved in the transaction and their economic group are to be considered.
- In case of an acquisition, the financials of the acquirer, its economic group, and the target company and the companies which are controlled by the target company are to be considered.
- In case of acquisition of assets, financials of the acquirer, its economic group and the asset which is being acquired are to be considered.
* economic group means “set of companies, local or foreign, composed of at least two companies, where any of them has control over the others, or where all of them are being controlled by one or more individuals acting as a decision unit”.
Applicability to foreign transactions
The provisions of this law will be applicable to concentration operations qualifying the jurisdictional thresholds which are being carried outside the territory of Peru if they have actual or potential effects in Peru. This includes situations where the parties have subsidiaries or assets in Peru or having commercial activities in Peru.
Non-notified transactions
INDICOPI is empowered to investigate the non-notified transactions which are to be notified mandatorily within the period of four years from the date of completion of the transaction. INDECOPI is also empowered to investigate those transactions which didn’t meet the thresholds within a period of one year from the date of completion of the transaction.
Voluntary notification
The parties are also allowed by the law to make a voluntary notification of concentrations which are below the jurisdictional thresholds.
Notification forms and procedure
There are two types of notification forms namely Standard Notification Form and Simplified Notification form which can be filed with INDICOPI. Standard Notification form shall be filed by the parties to the concentration act generally. But in some specified circumstances, when the parties are not required to disclose complete information, they can file a simplified notification form.
When to file: Parties are required to file the standard notification form before the execution of the transaction.
What to attach: The parties are required to submit the recent agreement signed for the transaction. If the agreement is not signed, then any document which is evidencing the intention of the parties to execute the transaction must be submitted to the authority.
Who is responsible to file: In cases of a merger or a Joint Venture Transaction, all the parties involved in the transaction must file the notification jointly. In any other case, the party who is obtaining control under the transaction is required to notify.
What information should be included in the form: Law specifies the minimum information which is mandatorily required to be included in the notification form. This information includes identification of parties, details of the transaction, description of the control structure and ownership, markets involved and the latest financial statements of the parties. If the notification is filed incomplete, then it is deemed to be not submitted and punishable with a penalty of up to 12% of the turnover of the parties.
Purpose: There are some transactions listed in the law that are deemed as less likely to produce significant restrictions to competition. The simplified Notification Form requires less information to be disclosed by the parties to the transaction.
Transactions eligible for simplified Notification form:
- Non-overlap concentrations where the parties do not carry business in the same geographical market or product market or they do not participate in the same value chain or production chain.
- Change from joint control to exclusive control.
The simplified Notification form is just a simplified form that requires fewer details to be disclosed. But, it is required to follow the complete procedure for review which is to be followed for any transaction. So, a Simplified Notification Form doesn’t mean a Fast-track procedure.
Procedure of review by the commission
Once the notification form is filed with the commission, there involve three phases of review
- Notification Phase
This phase starts from the day when the notification is filed with the commission. In this phase, the Technical Secretariat of the commission assesses whether the information provided by the parties met all the requirements under the law or not. This assessment shall be done within ten working days of filing the form. If in any case, it is found that any information is missing, then the parties will be given a further period of ten working days to rectify the same. After which the commission shall declare whether the notification is admissible or not within five working days.
- Phase 1
This is a Phase where the preliminary evaluation of the transaction is done to assess whether the transaction is likely to raise any serious competition concerns or not. This phase shall be completed within 30 working days from admission. If the commission is satisfied that the transaction may raise any serious competition concerns, then the procedure moves to Phase 2. If not, the commission will approve the transaction. If no decision is made within 30 working days, then the transaction is deemed to be approved.
- Phase 2
After notifying the parties that the procedure is moved to Phase 2 for further evaluation, it lasts for a period of 90 working days which can be further extended for a maximum of 30 working days. This period can be further extended up to another 15 days if the parties require hearings.
An appeal can be filed with the Competition Tribunal within 15 days of the decision of the Competition Commission. Appeal can be filed only by a party who is requesting the clearance.
Competition law regime before this legislation
Before Law No 31112, Peru had a merger control law which is applicable to only the electric sector. This Law is called Law 26876 (Antitrust and Anti-oligopoly Act for the Electricity Sector) and was enacted on 19 November 1997. There is no other law till now. Law No 31113 regulates the competition aspects of mergers in Peru.
Conclusion
This new merger control law of Peru is a major step ahead in the development of Peruvian competition policy. It had established the complete mechanism, like notification thresholds and notification forms which is required to limit the competition aspects in concentration operations. As it is the first of its kind of law for Peru which is being applied to all economic activities, time will be taken to derive proper Peruvian Jurisprudence relating to Competition.
References
- Merger Control 2021, Peru, Chambers and Partners
- Peru: The Regulation of the new Merger Control Law has been officially published, Garrigues
- Peru: Merger Control, Legal 500
- Peru: INDECOPI approves guidelines for the calculation of notification thresholds and notification forms, Global Compliance News
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