Ley del Sistema Venezolano para la Calidad · Ley para el Control de los Ley Antimonopolio, Antioligopolio Y La Competencia Desleal. Competition is more commonly known as the ‘Ley Anti-Monopolio’. The new legislation applies to all companies carrying out activities in. Venezuela, including. Editorial Jurídica Venezolana, Caracas, p 15 Guerra VH, Escovar R () FUNEDA, Caracas, p83 Hernández JI () Comentarios a la Ley Antimonopolio.
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You are currently accessing Latin Lawyer via your firmwide account. If you would like to login via a personal account, please use the link venezuel. What is the legislation applicable to merger control and how long has merger control legislation been in force? Pursuant to the Telecom Law, the transaction will only be effective after authorisation by Conatel is obtained. Therefore, closing of the transaction can only take place after such authorisation is issued.
Conatel should decide on venrzuela approval of the transaction within four months, which may be extended for two additional months. There are no effective remedies in case of delays in issuing the approval by Conatel. Conatel may only approve a transaction if the opinion of the Superintendency is favourable. However, there are no penalties applicable to Conatel or the Superintendency for exceeding such terms. The Superintendency must determine whether the antmonopolio may affect competition in the relevant market.
The Superintendency considers both the post-transaction market concentration and the increase in ne resulting from the transaction. The Superintendency also analyses barriers to entry, the dynamic of competition and efficiencies created out of the transaction. In its opinion the Superintendency may recommend Conatel to impose certain conditions to approve the transaction. Only if the parties agree to comply with the recommendations may the transaction be completed.
Otherwise, the approval is considered denied. Are parties that are required to file notification of a transaction pre-closing obliged not to close their transaction pending regulatory review?
Where pre-closing notification and approval is required, can a transaction that has been approved be challenged after closing? Has this ever happened? Under the Venezuelan Competition Law, filing is not mandatory. Therefore, the lack of notification would not venezue,a a violation of the Angimonopolio Competition Law and there are no penalties for not filing. It is always up to the parties to decide whether to file a voluntary notification.
Legislation Venezuela (Lexadin)
If a transaction is vendzuela notified, the Superintendency may open an investigation after the closing if it deems that antimpnopolio transaction may affect competition in Venezuela. In this case, the Superintendency must notify the parties, which have anyimonopolio business days which may be extended for 15 additional days to present evidence and arguments.
Once the evidence period is expired, the Superintendency should decide within 30 antimonlpolio days, which may be extended for two months. The transaction by which The Coca-Cola Company acquired the former Pepsi bottlers in Venezuela in was not notified and afterwards was challenged by Pepsi before the Superintendency Resolution No.
In its decision, the Superintendency confirmed the transaction but imposed certain obligations on Coca-Cola. Who are the authorities responsible aantimonopolio merger enforcement and how is responsibility for investigation and decision-making allocated between authorities or within an authority?
The authority in charge of merger control in Venezuela is the Antimonopoly Superintendency. Although an independent administrative agency, the Superintendency depends on the Ministry of Commerce.
As explained above, in Venezuela filing is voluntary. The Superintendency is in fenezuela of evaluating and deciding whether mergers voluntarily notified may have restrictive effects on competition. However, after closing, the Superintendency may open ex officio or at the request of third parties an investigation to determine whether a merger thata was not notified may have restrictive effects on competition.
The Superintendency has the power to take appropriate measures for the purpose of restoring effective competition if affected by a merger. Such measures include dissolution of the transaction, divestiture, or the imposition of fines of up to 20 per cent of the gross sales of the offending party for the previous year.
Identify the last three times merger control legislation was used to prohibit a transaction, and for each, provide the ultimate outcome. Recently during the past five years the Superintendency has only prohibited one transaction: The decision was not appealed by the parties.
Venezuela – Reference – Latin Lawyer
With respect to notifiable transactions that do not raise obvious competition concerns, what is the expected time frame from notification to a decision? With respect to notifiable transactions that raise obvious competition concerns, what is the expected time frame from notification to a decision?
The investigation of a transaction that raises competition concerns may last between six months and one year. Under the Competition Law filing with the Superintendency is voluntary.
There is no requirement to file or notify a transaction, even if the threshold set out below is met. However, if the threshold is met, the Superintendency may open a proceeding to investigate the impact of any transaction on competition in the Venezuelan market within five years of the closing of the transaction.
The lack of notification would not constitute by itself a violation of the Competition Law and there are no penalties for not filing.
Transactions that are subject to merger control include any:. The Competition Law defines control as decisive influence over the activities of a company. Conversely, any operation that does not meet the threshold may not be subject to review by the Superintendency. Neither the Competition Law nor the Merger Regulations contain special rules regarding particular sectors.
However, there are special rules applying to banking and insurance which include requirements unrelated to antitrust issues. Where change in control is part of the test, what is the standard for defining control and changes thereof for pre-merger notification purposes? Transactions that do not imply gaining control over another entity are not subject to the Merger Regulation.
The amount is calculated by adding the sales revenues for the last financial year of the parties of the merger, before deducting sales, discounts, value added tax and other taxes directly related to the business.
For purposes of calculating the thresholds, the authority takes into account the revenues of all companies belonging to the same economic group of the parties in Venezuela. The economic group would be comprised of companies controlled by the parties in Venezuela or companies in Venezuela that exercise control over the parties.
Specific rules apply to the calculation of turnover in the cases of partial acquisitions, companies with joint subsidiaries and mergers of insurance companies. Regardless of the circumstances, the threshold is relatively low and there is no existing jurisprudence concerning cases in which the Superintendency has initiated a review of transactions which fall below the threshold.
There are no de minimis requirements for filing. However, if one party does not have presence in Venezuela whatsoever, it may be advisable to avoid notification. Mergers or acquisitions concluded by foreign entities outside Venezuela that may have an impact on competition in the Venezuelan market may be reviewed by the Superintendency.
There must be a local nexus, such as presence as a branch office or subsidiary or assets in Venezuela for the merger control regime to apply. There have been no cases of foreign-to-foreign mergers being opposed by the Superintendency.
However, there is no official information about the number of cases. If local issues arise from a foreign-to-foreign merger, a solution may be to submit the transaction to the Superintendency for prior review to determine whether the transaction can be considered anti-competitive. If the transaction breaches the competition rules, the Superintendency may order the divestiture or the selling of part of the assets and even the dissolution of the merger. The parties are bound by the Superintendency’s decision.
Is there a standard form? How long does it take to prepare a filing? What type of information is generally required? Such information includes identification of the parties and its subsidiaries and affiliates, identification of directors and managers of such entities, details of the transaction including financial and economic aspectsdetails of the markets in which the parties are competitors and market access, information about the products and industrial processes involved prices, raw materialsinformation on market shares, barriers to entry and form of competition.
The parties may also present information on efficiencies arising from the transaction and any information regarding the failing firm argument if applicable.
Internal company documents, such as documents prepared for the board and reports and strategy papers prepared during the negotiation of the deal, are rarely requested and must only be disclosed upon request by the authority.
When must notification be made? Is there a triggering event that requires a filing to be made within a specified period? Is there a pre-notification requirement or custom whereby a draft notification is submitted first to the authority for comments and questions to be addressed before formal notification is made? How does that work in practice and what are the risks of submitting a formal notification without this step?
When must notification be made with respect to acquisitions of convertible non-voting securities or options? Explain whether these acquisitions must be notified at time of acquisition or before actual exercise or conversion. Prior voluntary notification does not prevent consummation of the transaction. The authority does not require any particular behaviour between signing and closing.
Voluntary notifications should be evaluated within four months of the date of filing, although the period may be extended for two more months. However, prior notification does not prevent consummation of the transaction.
If no filing is made, the Superintendency may open an investigation on the transaction within five years following consummation. If during the investigation the Superintendency finds that there is evidence of possible restrictive effects on competition arising from the transaction, the Superintendency may open a formal process.
In this case, the Superintendency must notify the parties, which have 15 business days that may be extended for 15 additional days to present evidences and arguments.
Pre-notifications meetings are not common. Are there post-clearance obligations imposed on the parties for a clearance decision to remain valid? Is there a simplified notification procedure with accelerated review periods?
What type of transactions qualify? Are there special rules applicable for public takeover bids, private equity transactions or for corporate restructuring under bankruptcy procedures? The Venezuelan Capital Markets Law provides that any person intending to commence a tender offer of a listed company shall notify its intention to the Venezuelan Securities Authority.
Venezuela: la ley antimonopolio
With the notification, the person intending to commence the tender offer must inform the Securities Commission of the effects of the transaction on competition, according to the Competition Law. If the person intending to commence the tender offer directly or indirectly competes antimonopollo the target, it must inform whether the transaction has obtained clearance by the Superintendency or, if the transaction was not notified, the reasons for the lack of notification.
Can the authority be consulted on a no-names basis for guidance on notification requirements? Is this practice useful? It is possible to file a request for guidance on notifications requirements to the legal department of the Superintendency. The request must be signed by an attorney.
What are the risks if the parties do not file, if the transaction is closed before clearance or if notification is untimely? What type of behaviour can be considered gun-jumping? What sanctions can be imposed and on whom?