Latin America: New Merger Control Regime in Peru

In brief

On 19 November 2019, the Government enacted the Emergency Decree No. 013-2019 (the "Law"), establishing a regime on merger & acquisitions (M&A) control managed by INDECOPI. The Law will enter into force on 19 August 2020. Its regulation must be enacted before 19 May 2020. The validity of the Law is not conditional on issuing the regulation.


Contents

The main aspects of the Law are:

  1. The applicable thresholds of the M&A subject to approval are the following (concurrently):
    1. The total value of the annual sales or gross income in the country of the companies involved in the M&A, in the previous year, are at least USD 145 million approx.; and,
    2. The total value of the annual sales or gross income in the country of at least two of the companies in the M&A, in the previous year, are at least USD 22 million approx.
  2. The M&A subject to approval must create a change in the corporate control, either direct or indirect. For instance, mergers, acquisitions of companies or productive assets, collaboration agreements, among others.
  3. The Law applies to any M&A that may produce effects in Peruvian territory, even if they took place abroad.
  4. The Law does not apply to an M&A involving the acquisition of rights by economic agents who have not previously participated in the relevant or related markets.
  5. The procedure may be conducted in two phases:
    1. The first phase (55 business days) ends with a decision either: (a) approving the M&A (if INDECOPI verifies no competition concerns arise); or, (b) declaring the beginning of a second phase (if the INDECOPI declares the M&A may have restrictive effects on competition).
    2. The second phase (120 business days) finalizes with the decision: (a) approving the M&A; (b) approving it, subject to conditions; or, (c) Rejecting the M&A. Parties can appeal the decision (90 business days). Administrative positive silence applies.
  6. In the proceeding, INDECOPI will assess whether there is a significant restriction to competition, based on factors such as market structure; existence of distribution and commercialization sources; existence of market access barriers; economic and financial capacity of the companies; creation or strengthening of dominance position; possible economic efficiencies; among others.
  7. At any stage, economic agents can offer conditions to mitigate the effects on competition arising from the M&A (e.g. carve-outs). If so, INDECOPI can extend the proceeding up to additional 45 business days.
  8. The Law establishes fines for non-compliance (e.g. gun-jumping) of up to 12% of turnover.
  9. The Law provides specific provisions in the cases of M&A transactions by companies supervised by the banking, stock market and telecom regulators.

© 2021 Baker & McKenzie. Ownership: This site (Site) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms, including Baker & McKenzie LLP). Use of this site does not of itself create a contractual relationship, nor any attorney/client relationship, between Baker McKenzie and any person. Non-reliance and exclusion: All information on this Site is of general comment and for informational purposes only and may not reflect the most current legal and regulatory developments. All summaries of the laws, regulation and practice are subject to change. The information on this Site is not offered as legal or any other advice on any particular matter, whether it be legal, procedural or otherwise. It is not intended to be a substitute for reference to (and compliance with) the detailed provisions of applicable laws, rules, regulations or forms. Legal advice should always be sought before taking any action or refraining from taking any action based on any information provided in this Site. Baker McKenzie, the editors and the contributing authors do not guarantee the accuracy of the contents and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the contents of this Site. Attorney Advertising: This Site may qualify as “Attorney Advertising” requiring notice in some jurisdictions. To the extent that this Site may qualify as Attorney Advertising, PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. All rights reserved. The content of the this Site is protected under international copyright conventions. Reproduction of the content of this Site without express written authorization is strictly prohibited.