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Peru

 
PERU

Luis Diez Canseco
Partner

ldiezcanseco@dclegal.pe

Tel: (+51 1) 711 0125 Ext. 1013

Robert Venero
Managing Partner

rvenero@dclegal.pe

Tel: (+51 1) 711 0125 Ext 1007

Camila Chamorro
Associate

cchamorro@dclegal.pe

Tel: (+51 1) 711 0125 Ext. 1015

Dario Morales
Associate

dmorales@dclegal.pe

Tel: (+51 1) 711 0125 Ext. 1003

New regulation proposed

Indecopi has published draft Guidelines for the qualification and analysis of mergers transactions. It is uncertain when these will formally enter into force, but the content is likely to reflect the approach that Indecopi already has in any matter covered by the Guidelines.

Confirmed up-to-date: 30/08/2022

(Content available free of charge at Mergerfilers.com - sponsored by Díez Canseco Competencia & PI )

Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes. The Law No 31112 established a general regime of prior control of mergers (hereafter, the “Act No. 31112 - Antitrust Merger Review Act”) and it entered into force on June 14, 2021.

2) Which authorities enforce the merger control regulation?

Indecopi is the national authority in charge of the prior control of mergers in all sectors. This labor will be carried out specifically by the Commission for the Defense of Antitrust as the first administrative instance; and, by the Competition Defense Court of Indecopi as the second and last administrative instance.

Within the organizational structure of Indecopi, one of the most important units is the National Directorate of Investigation and Promotion of Free Competition, which has the technical autonomy to carry out the actions of ordering, instruction and investigation of merger operations subject to the procedures provided for by Act No. 31112 – Antitrust Merger Review Act.

3) Relevant regulations and guidelines with links:

Original Spanish version

Unofficial English Translation

Ley N° 31112, que establece el control previo de operaciones de concentración empresarial

Act No. 31112 - Antitrust Merger Review Act

Decreto Supremo N° 039-2021-PCM, que aprueba el Reglamento de la Ley N° 31112

Supreme Decree 039-2021-PCM, Regulations of Act No. 31112

Lineamientos de Cálculo de Umbrales de Notificación

Notification Thresholds Calculation Guidelines

Formulario de notificación ordinario

Regular notification form

(English translation not available)

Formulario de notificación simplificado

Simplified notification form

(English translation not available)

Escenario a fin de determinar si justifica la notificación de una operación de concentración empresarial que no ha superado los umbrales legales

 

Infography explaining how to determine whether merger notification is required

(English translation not available)

Proyecto de lineamientos para la calificación y análisis de operaciones de concentración empresarial

Draft Guidelines for the qualification and analysis of mergers transactions

(English translation not available)

4) Does general competition regulation apply to mergers or ancillary restrictions?

The merger control regime applies to all mergers and to ancillary restrictions that are an inherent part of the merger.

5) May an authority order a split-up of a business irrespective of a merger?

Yes, the Peruvian authority can order the division of a business without the need for a merger or concentration. This may occur as a consequence of a sanction imposed on a company that has incurred in an abuse of a dominant position or collusive practices.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

The Act No. 31112 - Antitrust Merger Review Act stipulates that INDECOPI is the competent authority for the notification and request for authorization of a merger. However, in the case of transactions involving economic agents of the financial system that take deposits from the public or are insurance companies, notification must be submitted to the Superintendence of Banking, Insurance and AFP (by its acronym in Spanish, “SBS”) in addition to notification to INDECOPI. If there is a danger of systemic risk or relevant and imminent risk to the strength or stability of these companies, only the authorization of the SBS will be required.

In addition, companies regulated by the Superintendence of the Securities Market who take part in business mergers will also have to request authorization from this authority in addition to notification to INDECOPI.

Foreign investment control:

Legislative Decree 662 and Supreme Decree 162-92-EF (“FDI Regulations”) establish a regime for foreign investment in Peru which is aimed to give the same treatment to foreign and national investors with no exceptions other than those established by the Peruvian Constitution and the FDI Regulations.

Restricted investments for foreign investors

The FDI Regulations in accordance with constitutional and legal provisions state limitations on property rights and possession of:

  • mines,
  • land,
  • forests,
  • water,
  • fuel, and
  • energy sources

located in areas within fifty (50) kilometers of the country’s borders by foreign investors. In those cases, prior authorization of the Peruvian government will be required.

There are other specific restrictions regarding

  • exploitation of natural resources within declared Protected Natural Areas,
  • operation of broadcast services,
  • commercial aviation activities, and
  • maritime transportation in the Peruvian territory.

What is considered a “foreign investment”

Under the FDI Regulations, investments from abroad that are made in any of the following modalities may be considered “foreign investments”:

  • Contributions owned by foreign natural or legal persons, channeled through the National Financial System, to the capital of a new or existing company. For example: industrial facilities, new and reconditioned machines or equipment, spare parts, pieces and parts, raw materials, and intermediate products
  • Investments in national currency from resources with the right to be remitted abroad
  • The conversion of private obligations abroad into shares
  • Reinvestments compatible with current legislation
  • Investments in assets physically located within the national territory
  • Intangible technological contributions, such as trademarks, industrial models, technical assistance and patented or non-patented technical knowledge that may be presented in the form of physical goods technical documents and instructions
  • Investments for the acquisition of securities, documents and financial papers listed on stock exchanges or bank deposit certificates in national or foreign currency
  • Resources allocated to a joint venture or similar contracts that grant the foreign investor a form of participation in the production capacity of a company, without implying a capital contribution and that corresponds to commercial operations of a contractual nature through which the foreign investor provides goods or services to the recipient company in exchange for a participation in the volume of physical production, in the global amount of sales or in the net profits of the referred recipient company
  • Any other form of foreign investment that contributes to the development of the country.

Registration of foreign investments

FDI Regulations establish an obligation for non-restricted foreign investments to be registered with the Peruvian Private Investment Promotion Agency (“Proinversion” by its acronym in Spanish). There is no specific threshold or deadline established for this registration.

This obligation also applies for foreign investments contractually formalized with a Peruvian company, including joint ventures and any other form of risk associations.

Equal treatment of non-restricted foreign investments

The FDI Regulations grant guarantees to foreign investors such as:

  • Non-discriminatory treatment
  • Freedom of trade and industry, and freedom to export and import
  • Right to transfer profit or gains abroad in freely convertible currencies and without prior authorization, after having paid the applicable taxes
  • Use of the most favorable exchange rate in the market
  • No restrictions on purchases of national investors’ shares or property rights

The possibility of entering legal stability agreements with the Peruvian government, which could grant foreign investors the following rights for a period of ten (10) years: a) stability of the tax regime (Income Tax), b) stability of the right to non-discrimination, c) stability of the right to use the most favorable exchange rate found in the exchange market, d) stability of the regimen of free availability of foreign exchange, and e) stability of the right of free remittance of profits, dividends and capital.

7) Are any parts of the territory exempted or covered by particular regulation?

No. The scope of application of the Act No. 31112 - Antitrust Merger Review Act includes any merger that produces effects in all or part of the Peruvian territory.  

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

The filing of a request for authorization of a merger is mandatory when the thresholds in topic 14 are met.

However, parties to a merger that does not fall within the scope of the thresholds may voluntarily notify the authority to confirm the merger does not exceed the thresholds.

Types of transactions to file – what constitutes a merger

9) Is there a general definition of transactions subject to merger control?

The Act No. 31112 - Antitrust Merger Review Act defines a merger subject to control and authorization broadly as any act or operations that imply a transfer or change in the control of an enterprise or part of them, which may occur due to:

  • A merger of two or more businesses.
  • The acquisition by one or more businesses, directly or indirectly, of rights that allow them, individually or jointly, to exercise control.
  • The formation by two or more independent businesses of a common company, joint venture or any other analogous contractual modality that implies the acquisition of joint control over one or more businesses.
  • The acquisition by a business of direct or indirect control, by any means, of productive operating assets of one or more other businesses.

10) Is "change of control" of a business required?

Yes. The merger control regime is only applicable to transactions that involve a change of control.

11) How is “control” defined?

“Control” is defined as the possibility of exercising decisive and continuous influence over an economic agent through

  1. rights of ownership or use of all or part of the assets of an enterprise, or
  2. rights or contracts that allow decisive and continuous influence over the composition, deliberations or decisions of the organs of an enterprise, directly or indirectly determining the competitive strategy.

12) Acquisition of a minority interest

Since the acquisition of a minority stake does not result in a change of control of the target, it does not qualify as a merger subject to the Law Act No. 31112 - Antitrust Merger Review Act, and therefore the participating businesses are not required to notify and request authorization from the competent entity.

13) Joint ventures/joint control – which transactions constitute mergers?

The Act No. 31112 - Antitrust Merger Review Act and its regulations does not include any special approach to joint ventures or joint control. It may be assumed that the following transactions regarding businesses subject to joint control may be subject to merger control, provided the joint venture is "full function":

  1. Establishment of a joint venture
  2. Change from joint to sole control
  3. Dissolution – provided (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or a third party
  4. Change in or extension of the activities of a joint venture – provided that further assets, contracts, know-how, rights etc. are transferred to the joint venture to form the basis for the new activities.
  5. Change in participants/owners – for instance if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business. In the latter case, the competition authorities may consider that the transaction results in two separate mergers and that these should be assessed separately with respect to who are parties to the transaction and whether the thresholds for merger filing are exceeded.

A joint venture that is not “full function”, because it does not, on a lasting basis, perform all the functions of an autonomous economic entity, is not subject to merger control but may be scrutinized under the general prohibition on anti-competitive agreements. Whether a joint venture is considered “full function” or merely “cooperative” depends on the level of the joint venture’s dependence on its parents and to what extent the joint venture has an independent presence in the market.

Even if a joint venture is “full function” and therefore subject to merger control (provided the thresholds are met), the general prohibition on anti-competitive agreements may also be applied if the joint venture has coordination of the market behaviour of the parent companies as object or effect.

Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

The Act No. 31112 - Antitrust Merger Review Act stipulates that a request for authorization to the competent entity must be submitted when both of the following thresholds are met:

  • When the gross sales or income generated in Perú by the economic agents involved in the merger is equal to or greater than 118,000 UIT in the fiscal year prior to the one in which the notification is made; and
  • When the value of the sales or gross income in Perú of at least two of the economic agents involved in the merger is equal to or greater than 18,000 UIT in the fiscal year prior to the one in which the notification is made.

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

The Act No. 31112 - Antitrust Merger Review Act stipulates that a request for authorization must be submitted when the value of the assets of the companies involved in the merger is equal or greater than 118,000 UIT in the fiscal year prior to the one in which the notification is made. 

e) Other

N/A

15) Special thresholds for particular businesses

N/A

16) Rules on calculation and geographical allocation of turnover

The Act No. 31112 - Antitrust Merger Review Act Regulations establishes the rules for the calculation of thresholds, which are based on the different business mergers subject to the Act. Therefore, the following must be taken into account in order to assess whether the thresholds are met:

  • The gross sales or revenues generated in Peru by the businesses involved must have exceeded the threshold in the fiscal year prior to that in which the business merger is notified.
  • The book value of the assets in Peru of the companies involved must have exceeded the threshold in the fiscal year prior to that in which the business merger is notified.

Is the seller/seller's group turnover relevant in a standard acquisition of sole control?

No.

17) Special rules on calculation of turnover for particular businesses

N/A

18) Series of transactions that must be treated as one transaction

For the review in the case of successive operations or series of transactions, they should be taken as a whole as a single operation, in order to include all the companies involved in such operations to verify whether they meet the thresholds that subject the operation to the control and authorization of the competent authority. There is no guidance as to what may trigger a series of transactions to be regarded as a single operation.

Exempted transactions and industries (no merger control even if thresholds ARE met)

19) Temporary change of control

The Act No. 31112 - Antitrust Merger Review Act emphasizes that temporary control acquired over an economic agent as a result of

  1. a temporary mandate conferred by legislation relating to the expiration or termination of a concession,
  2. equity restructuring, insolvency, creditors' agreement or other similar procedure

is not subject to the provisions of the Act.

20) Special industries, owners or types of transactions

See topic 6.

21) Transactions involving only foreign businesses (foreign-to-foreign)

Foreign-to-foreign mergers are caught like any other merger meeting the thresholds.

22) No overlap of activities of the parties

N/A

23) Other exemptions from notification duty even if thresholds ARE met?

Peruvian legislation does not establish any exception to the duty to notify the competent authority of a merger that meets the thresholds.

Merger control even if thresholds are NOT met

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Yes. As explained in topic 25, INDECOPI may ex officio initiate an investigation even if the thresholds are not met, but there is a risk that competition may be affected. Therefore, if the parties are concerned that INDECOPI will find the merger problematic, it may be advisable to file voluntarily.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

Only in those cases where the thresholds are exceeded can a merger notification be required. However, if the thresholds are not exceeded but there is a risk of affecting competition, INDECOPI may initiate an ex officio investigation and impose measures.

Referral to and from other authorities

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

N/A

28) Referral to another jurisdiction

N/A

29) May the merging parties request or oppose a referral decision?

N/A

Filing requirements and fees

30) Stage of transaction when notification must be filed

The Peruvian merger control regulation does not establish a specific stage to notify the authority about the merger transaction. However, it requires that such submission be made prior to its completion.

31) Pre-notification consultations

Prior to the initiation of the preliminary control procedure, the merging parties may individually or jointly submit indicative consultations to the National Directorate of Investigation and Promotion of Free Competition in order to determine whether the transaction falls within the scope of application of the Act No. 31112 - Antitrust Merger Review Act. The response is not binding.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

In the case of a merger transaction carried out through a public takeover bid in the stock market, a prior authorization of the merger transaction is needed to initiate the respective procedure before the Superintendence of the Stock Market.

33) Forms available for completing a notification

There are no forms available to complete a notification in Peru. However, the Act No. 31112 - Antitrust Merger Review Act Regulation specifies the requirements that a prior authorization request must meet in order to notify the merger operation.

34) Languages that may be applied in notifications and communication

All information provided to the authority must be in Spanish. Documents in a foreign language must be translated into Spanish by a translator or, if possible, a certified translator.

35) Documents that must be supplied with notification

The authorization request notifying the merger transaction must include the following:

  • Authorization request for the merger transaction.
  • Form signed as an Affidavit.
  • Identification details of the economic agents involved in the operation.
  • Identification details of the legal representative(s) of the notifying economic operator(s).
  • Description and purpose of the merger.
  • Description of the ownership and control structure of each of the economic operators involved in the merger and their respective economic groups.
  • Identification of the kinship, ownership, and/or management links between each of the economic actors.
  • Where relevant, a detailed description of the efficiencies linked to the merger, and how these are passed on to consumers.
  • Identification of the countries in which the merger has been notified or is intended to be notified.
  • Financial statements for the fiscal year preceding that of the notification of the economic operators involved.

36) Filing fees

The amount of the filing fee is 91,629.40 PEN (approximately 23,000 USD).

Implementation of merger before approval – “gun jumping” and “carve out”

37) Is implementation of the merger before approval prohibited?

Yes, when the thresholds are exceeded. The implementation of a merger subject to prior control does not produce legal effects until the approval of the authorization request, and failure to comply with the notification obligation renders the transaction ineffective, and sanctions may be imposed.

38) May the parties get permission to implement before approval?

No.

39) Due diligence and other preparatory steps

Due diligence should be carried out in a manner that prevents competitively sensitive information from being used for purposes other than the assessment of the approval of the merger. In this regard, a declaration of confidentiality of the information may be requested by the merging parties.

40) Veto rights before closing and "Ordinary course of business" clauses

The merger control rules do not regulate veto rights and "ordinary course of business" clauses. It should be carefully considered whether any such veto rights or “ordinary course of business” clauses may be regarded as implementation of the merger prior to approval (“gun jumping”).

41) Implementation outside the jurisdiction before approval – "Carve out"

Although there are no specific regulations on "carve out", the Act No. 31112 - Antitrust Merger Review Act provides that all mergers that produce effects in all or part of the Peruvian territory, including mergers carried out abroad, are subject to prior control if they fall within the established thresholds, and failure to comply will result in the ineffectiveness of the operation and the imposition of measures and sanctions. It must be assessed on a case-by-case basis whether it is possible to carve out the Peruvian part of a transaction. If the Peruvian part of the transaction and the rest of the transaction are interdependent, it is advisable to request a specific permission to implement outside Peru from INDECOPI. 

42) Consequences of implementing without approval/permission

The main consequence of implementing and perfecting the merger operation subject to prior control without authorization is the ineffectiveness of the merger. The parties may also be subject to fines.

The process – phases and deadlines

43) Phases and deadlines

Phase Duration/deadline

Authorization request for prior approval of a business merger operation.

There is no deadline for filing a request, but the merger may not be completed prior to approval.

The Director of the National Directorate of Investigation and Promotion of Free Competition reviews the application for compliance with the requirements.

10 working days after such a request has been submitted.

The National Directorate of Investigation and Promotion of Free Competition admits the authorization request.

5 working days.

Phase 1: Presentation of commitments.

 

The parties must present any commitments within 15 working days of the notification for the Commission to take these into account.

The Commission determines whether the merger falls within the scope of the Act No. 31112 - Antitrust Merger Review Act and if it may raise concerns regarding significant restrictive effects on competition.

If the Commission concludes the merger does not fall within the scope of the Law 3112 or does not raise serious concerns as to causing significant restrictive effects on competition, it ends the first phase concluding the proceeding or authorizing the operation.

If the Commission concludes the opposite, it communicates the interested parties the risks that it has identified as well as the end of the first phase and the beginning of the second phase.

30 working days from the date on which the application is admitted for processing.

Phase 2: Presentation of commitments.

 

For the Commission to take any commitments into account, the parties must present these within 40 working days from notification of the decision initiating phase 2.

The Commission decides on the commitments and approval.

15 working days from the end of the deadline for the submission of Phase 2 commitments.

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

INDECOPI may use different criteria to evaluate the merger transaction, including the substantial lessening of competitions (SLC) test.

45) May any non-competition issues be considered?

Although INDECOPI may use different criteria to evaluate the merger transaction, the decision taken by the authority must be based on competition criteria.

46) Special tests or criteria applicable for joint ventures

There are no regulations on special tests or criteria applicable to joint ventures.

47) Decisions and remedies/commitments available

INDECOPI can resolve an application for approval of a merger by approving it unconditionally, conditionally or by rejecting it.  Once the proceeding has been initiated, the parties have the possibility to offer remedies.

Applicants may lodge an appeal to challenge the decision.

Publicity and access to the file

48) How and when will details about the merger be published?

The conditions, commitments, agreements and other measures approved by the Commission are recorded in a register in order to provide publicity for the Commission's decisions and security for third parties when contracting with the applicants.

Sensitive data of the merger operation will not be published.

49) Access to the file for the merging parties and third parties

The merging parties:

At any time during the procedure and until it is concluded at the administrative level, only the parties involved in the merger and third parties with a legitimate interest who have appeared in the procedure in due time have the right to know the status of the file, to have access to it and to obtain a copy of the proceedings, provided that the Commission has not approved its confidentiality on the grounds that it constitutes confidential information. 

Third parties:

Third parties with a legitimate interest may access non-confidential information in the file.

Judicial review

50) Who can appeal and what may be appealed?

Third parties with a legitimate interest or the merging parties can resort to an administrative appeal within INDECOPI.  Subsequently, the economic agents can oppose the decision through the contentious-administrative process in a court.


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