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Client Alert – China and Argentina face relevant changes on their Antitrust Systems

May 15, 2018

China merges its three antitrust agencies into a single authority

The Chinese government has approved a major institutional reform that consolidated its three competition agencies into a new super governmental agency.

The three former agencies integrated are:

• The Price Supervision and Anti-Monopoly Bureau of the National Development and Reform Commission (NDRC), which analyzed price related conduct.
• The Anti-Monopoly Bureau of the Ministry of Commerce (MOFCOM) responsible for reviewing mergers.
• Anti-Unfair Competition Bureau of the State Administration of Industry and Commerce (SAIC) that oversaw non-price related conduct.

The new integrated agency, the State Administration of Market Regulation (SAMR), will be responsible for merger control and all anticompetitive conducts. This is the first time China ́s eight-year-old antitrust law will be examined under one single roof.

SAMR will also combine the existing responsibilities of the State Administration for Industry and Commerce (SAIC), the General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ), the China Food and Drug Administration (CFDA), the Certification and Accreditation Administration (CAC) and the Standardization Administration of China (SAC). Additionally, it will govern the State Intellectual Property Office (SIPO).

Effects

Although SAMR is just begging its operations, it can be securely expected that the agency will boost intra-government collaboration.

Integration is also expected to result in high operational efficiencies, such as learning efficiencies and greater decision consistency.

Regarding its antitrust agenda, SAMR recently announced it will target investigations in public utility companies.

Healthcare, education, finance and funeral services related companies may also expect increased scrutiny.

Argentinian Congress finally approves the New Antitrust Law

On May 9, 2018, the House of Deputies of Argentina approved an antitrust bill, which had already been approved by the Senate in April, 2018.

The new Argentinian Antitrust Law is now ready to be enacted by the Executive Power within the next days and will provide the antitrust system currently in force in with substantial changes:

Creation of a “Super Competition Agency”. The National Antitrust Authority will be a decentralized and independent organ composed by the following entities: the Tribunal for the Defense of Competition, the Secretariat for Investigation of Anticompetitive Conducts and the Secretariat of Economic Concentrations. The elected format is very similar to the Brazilian Antitrust Agency.

Heavier sanctions for anticompetitive conducts. Fines will be established in accordance with one of the highest following criteria: (i) up to 30% of turnover related to the affected products multiplied by the number of the years that the illegal conduct lasted; or (ii) twice the value of the profit amount obtained through the illicit. In case the methods (i) or (ii) above cannot be calculated, it will be applied up to approximately US$200 million. Double jeopardies will be subject to double fines.

Introduction of a Leniency Program. After years of discussion, the leniency agreements will finally integrate the Argentinian Antitrust Law benefiting companies and individuals that provide useful information about a wrongdoing. The program can be considered very beneficial since it will provide the applicants with (i) full immunity from any sanction for the first-in; (ii) reduction of fines between 50% and 20% for the second and the subsequent applicants; (iii) introduction of the Leniency Plus agreement with a fine reduction of up to 1/3 for participation in the first cartel. The Argentinian program can be considered even more beneficial than other very advantageous programs, such as the Brazilian one.

Changes in merger control. Following the Brazilian example, the bill introduces the pre-merger control regime, updating the notification thresholds (established in pesos since 1999) and the methods used for calculation. The new law also: (i) implements the fast-track proceeding for transactions unlikely to affect competition and (ii) establishes a range of approximately US$ 5,000 and US$ 20,000 of filing fees to submit transactions.

Damages actions. The bill foresees binding effect on courts of any antitrust decision issued by the National Antitrust Authority strengthening private damages actions (stand-alone and/or follow-on) originated from antitrust law infringements.

Judicial review. The bill provides for the creation of a specialized division in the Federal Court of Appeals to review appeals related to the National Antitrust Authority’s decisions.