1) Is a merger control regulation in force?

Yes. The Peruvian merger control regime is regulated in Law No. 31112, Merger Control Law (hereinafter, the “Peruvian Merger Control Law”), which entered into force on June 14th, 2021. 

2) Which authorities enforce the merger control regulation?

The Peruvian Competition Agency (“INDECOPI”, for its acronym in Spanish), is the authority in charge of the enforcement of the Peruvian Merger Control Law.

In particular, the following three bodies within INDECOPI are responsible for the enforcement of the law:

1. The National Directorate for the Investigation and Promotion of Competition (“DLC”, for its acronym in Spanish), which is responsible for conducting the procedures for the evaluation of the filings for merger control authorization and for investigating potential infringements of the law.
2. The Commission for the Defense of Competition (hereinafter, the “Competition Commission”) which evaluates and issues first-instance decisions on the filings for authorization and infringements of the law.
3. The Specialized Chamber for the Defense of Competition (hereinafter, the “Competition Tribunal”), which resolves appeals against the decisions issued by the Commission.

3) Relevant regulations and guidelines with links:

The Peruvian merger control regime is regulated in the Peruvian Merger Control Act and in the following complementary regulations and guidelines:

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

The Peruvian Competition Law, established in Supreme Decree 111-2024-PCM; applies subsidiarily to the Peruvian Merger Control Law, in particular, the regulations regarding confidentiality requests and fine scales.

Likewise, other applicable analysis criteria foreseen in the Peruvian Competition Law is applicable to the extent that they are compatible with the specific provisions of the Peruvian Merger Control Law.

Ancillary restraints are assessed within the scope of the substantive evaluation of the concentration, in accordance with the criteria set forth in the Peruvian Merger Control Law.

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

No. While article 49 of the Peruvian Competition Law grants the Competition Commission the authority to impose corrective measures, such measures must be aimed at reversing the effects of an anti-competitive conduct (e.g., obligation to contract, granting access to an association, among others). The split-up of a business , thus, is not a corrective measure that the Competition Commission can order.

However, within the framework of the Peruvian merger control regime, the Commission is authorized to order the split-up of an economic agent when a concentration operation has been carried out in contravention to the law. See topic 42.

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 following economic agents, corresponding to specific industries, may be required to obtain authorization from sectoral authorities – in addition to INDECOPI’s approval – in order to carry out a transaction:

Financial Institutions

Concentration operations involving economic agents regulated and supervised by the Superintendence of Banking, Insurance, and Private Pension Fund Administrators (“SBS” for its acronym in Spanish) require authorization from both this entity, in accordance with its mandate to exercise prior control aimed at prudential oversight and the safeguarding of financial stability; and INDECOPI. See topic 20.

Agents subject to the regulation and supervision of the Superintendence of the Securities Market

Concentration operations involving economic agents regulated and supervised by the Superintendence of   the Securities Market (“SMV”, for its acronym in Spanish) require authorization from both this entity, within its jurisdiction, and INDECOPI.

Foreign investment control:

Regulations and guidelines

Foreign investment regulation is primarily established by Legislative Decree No. 757, Framework Law for Private Investment Growth, and Legislative Decree No. 662, which stablishes a legal stability regime for foreign investments through the recognition of certain guarantees.

It must be noted that neither of these statutes establishes a foreign investment control regime; rather, they set forth the general rules and protections applicable to such investments.

What is considered a foreign investment

Foreign investments are defined as those originated abroad and intended for income-generating economic activities. A non-exhaustive list of such investments include:

1. Contributions of cash or assets by a foreign person or entity to the capital of a domestic enterprise.
2. Investments in national currency originating from resources with the right to be sent abroad.
3. The conversion of private obligations abroad into shares.
4. Reinvestments made in accordance with current legislation.
5. Investments in assets physically located within the Peruvian territory.
6. 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.
7. Investments for the acquisition of securities, documents and financial papers listed on stock exchanges or bank deposit certificates in national or foreign currency.
8. Resources allocated to contractual joint ventures that grant the foreign investor participation in a company's production capacity without a capital contribution, in exchange for a share in the production, sales, or profits of the recipient company.
9. Any other form of foreign investment that contributes to the development of the country.

Relevant authorities, procedures, and restrictions

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

No. The Peruvian Merger Control Law applies to all parts of the Peruvian territory.

8) Is merger filing mandatory or voluntary?

Filing is mandatory for transactions qualifying as concentration operations and surpassing the relevant notification thresholds. See topics 9 and 14.

Nonetheless, voluntary notification is allowed for concentrations falling out of the thresholds. See topic 24.

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

Yes. Concentration operations are defined as any act or transaction involving the transfer or change of control over a company or part of it. Such changes may occur as a result of:

1. The merger of two or more economic agents that were independent prior to the transaction, regardless of the corporate form of the entities involved or of the resulting entity.
2. The acquisition, by one or more economic agents, directly or indirectly, of rights that grant them, individually or jointly, the power to exercise control over all or part of one or more economic agents.
3. The creation, by two or more independent economic agents, of a common enterprise, joint venture, or any other analogous contractual arrangement that involves the acquisition of joint control over one or more economic agents, provided that the resulting entity operates as an autonomous and functional economic agent.
4. The acquisition by an economic agent of direct or indirect control, by any means, over the productive operational assets of one or more other economic agents.

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

Yes. For a transaction to qualify as a concentration operation, a change of control over an economic agent must be verified.

This requirement also applies to transactions that result in the creation of a new economic agent, where the founding parties will acquire control over the newly established agent.

11) How is “control” defined?

Article 3 of the Peruvian Merger Control Law defines “control” as the ability to exercise a decisive and continuous influence over an economic agent through

1.  rights of ownership or use over all or a substantial part of the assets of an undertaking; or
2. rights or contractual arrangements that confer the ability to exercise decisive and continuous influence over the composition, deliberations, or decisions of the governing bodies of an undertaking, thereby enabling the direct or indirect determination of its competitive strategy.

12) Acquisition of a minority interest

A minority interest acquisition may be subject to mandatory notification if it results in the minority shareholder acquiring control over an economic agent. For instance, the Qualification and Analysis of Concentration Operations Guidelines point out that such a scenario may arise when the minority shareholder is granted veto rights over strategic decisions that may have an impact on the competitive conduct of an economic agent. 

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

Acquisition of joint control over an economic agent through the constitution of a common enterprise, joint venture, or any other analogous contractual arrangement is subject to mandatory filing provided that resulting entity qualifies as an autonomous and functional economic agent.

For these purposes, the Guidelines for the Qualification and Analysis of Concentration Operations establish that such an agent exists when it possesses both (i) functional and (ii) operational autonomy.

Functional autonomy refers to the possession of human, operational, and financial resources that enable the economic engage in economic activity independently over an extended period. One indicator of such autonomy is the level of income the agent is expected to generate from third parties.

Operational autonomy, in turn, refers to the ability of the economic agent to conduct economic activities independently from those performed by its parent companies. Consequently, the creation of a new entity whose sole purpose is to provide services exclusively to its parent companies does not constitute a concentration operation.

As a reference, the Guidelines for the Qualification and Analysis of Concentration Operations cite the following examples of transactions subject to mandatory notification: the formation of new jointly controlled enterprises, contractual joint ventures, consortiums, and risk service contracts in the mining sector.

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 thresholds set forth in the Peruvian Merger Control Law are based on the turnover or asset value of the economic agents involved in the concentration operation.

These factors must be applied alternatively. Accordingly, the parties are required to notify the concentration operation if: (i) their sales or gross revenues meet the combined and individual thresholds established by the regulation; or (ii) the value of their assets meets such thresholds.

Considering this, a concentration operation is subject to mandatory filing if the following turnover thresholds are jointly surpassed:

1. The combined total gross sales or income in Peru of the economic agents involved in the concentration operation, in the fiscal year prior to the concentration, is equal or greater than 118,000 Tax Units (“Joint threshold”).
2. The total gross sales or income in Peru of at least two of the economic agents involved in the concentration operation, in the fiscal year prior to the concentration, is equal or greater than 18,000 Tax Units, each (“Individual threshold”).

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

A concentration operation is subject to mandatory filing if the following asset value thresholds are jointly surpassed:

1. The combined total value of the assets in Peru of the economic agents involved in the concentration operation, in the fiscal year prior to the concentration, is equal or greater than 118,000 Tax Units.
2. The total value of the assets in Peru of at least two of the economic agents involved in the concentration operation, in the fiscal year prior to the concentration, is equal or greater than 18,000 Tax Units each.

e) Other

N/A

15) Special thresholds for particular businesses

N/A

16) Rules on calculation and geographical allocation of turnover

The economic agents to be considered for threshold calculation vary depending on the type of concentration operation. In this regard, the Notification Thresholds Calculation Guidelines provide that:

1. When the concentration operation consists of a merger, or the acquisition of joint control over an economic agent, the income or sales or the asset value of the economic agents participating in the transactions and their economic groups should be considered.
2. When the concentration operation consists of the acquisition of control over part or all of other economic agent, the income or sales or the asset value that should be considered correspond to those of the acquiring agent, its economic group, the acquired agent, and the agents over whom the acquired agent exercises control. 
3. When the concentration operation consists of the acquisition of control over a productive operative asset, the income or sales or the asset value that should be considered correspond to those of the of the acquirer and its economic group; and those sales or gross income that is generated by the acquired productive assets or the book value of those assets. 

Threshold calculation must consider income or sales related to the usual line of business, excluding returns, offers or discounts, taxes collected by the economic agent as retainer by legal provisions, and amounts resulting from sales or services provided to other economic agents within the same economic group.

Regarding geographical allocation, only income or sales coming from Peru must be considered. Specific rules regarding the allocation of revenues in cases involving the international provision of services and online sales are outlined in the Notification Thresholds Calculation Guidelines.

Similarly, with respect to assets, only the book value of assets located in Peru during the year preceding the concentration should be considered. This includes tangible assets physically situated in the country and intangible assets arising from contracts with Peruvian economic agents or registered in the Peruvian Public Registry.

Assets located in Peru that have generated more than 50% of their income from sales outside the country during the fiscal year prior to the notification are excluded from the threshold calculation.

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

As described in topic 16, in the case of acquisition of control over another economic agent, only the income or sales or asset book value of the acquired agent, and the agents over whom the acquired agent exercises control are considered, together with that of the acquirer and its economic group. 

17) Special rules on calculation of turnover for particular businesses

N/A

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

Transactions carried out by the same economic agents within a period of two years are deemed to constitute a single concentration operation. The concentration must be notified before the execution of the final act that results in the applicable thresholds being surpassed.

The Notification Thresholds Calculation Guidelines expand upon this provision, stating that, in such cases, companies must notify the merger transaction if:

1. The total gross sales or income of the economic agents involved in all successive transactions reach both the joint and individual thresholds; or if,
2. The total value of the assets of the economic agents involved in all successive transactions reaches both the joint and individual thresholds.

It is not permitted to apply one calculation criterion for one transaction and a different one for the next.

19) Temporary change of control

Temporary changes of control are excluded from the scope of the Peruvian merger control regime, as the law applies only to changes of control that are intended to be lasting.

20) Special industries, owners or types of transactions

The Peruvian Merger Control Law provides a single scenario in which a concentration operation subject to mandatory filing can be exempted from prior authorization by the Commission. This exception applies to concentration operations involving financial institutions or insurance companies that collect deposits from the public. If such entities face serious and imminent risks that could compromise their solvency or threaten the stability of the entities themselves or the financial systems to which they belong, only prior authorization from the SBS is required. See topic 6.

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

Foreign-to-foreign concentration operations are subject to mandatory filing if they surpass the notification thresholds.

22) No overlap of activities of the parties

While concentration operations where there is no overlap of activities of the parties are not exempt from mandatory filing, a Simplified Notification Form, requiring less extensive information, can be used for filing. See topic 33. 

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

N/A

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, parties to a transaction that does not exceed the threshold may file voluntarily. Once the concentration is notified, it cannot be executed until its approval.

The parties may also consult the DLC on whether the intended voluntary filing is justified.

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

Yes. The DLC has the power to conduct ex-officio investigations on concentration operations that do not meet the notification thresholds in cases where there are reasonable indications to believe that the concentration operation may create a dominant position or adversely affect effective competition in the relevant market. This power may be exercised for up to one year following the closing of the concentration.

The Peruvian Merger Control Regulation outlines the following scenarios in which such investigations may be triggered:

1. Horizontal concentrations caried out in concentrated markets.
2. Horizontal concentrations involving the acquisition of an economic agent with a small market share but significant growth potential, or of an innovative market entrant.
3. Horizontal concentrations where the acquiring party or its economic group have previously acquired competitors.

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

30) Stage of transaction when notification must be filed

The concentration operation must be filed for authorization prior to its execution. 

31) Pre-notification consultations

Economic agents may submit consultations to the DLC to inquire whether a transaction falls within the scope of the Peruvian Merger Control Law, what information is required for filing, and other related matters.

The responses issued by the DLC are not binding on the Commission.

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

In the case of concentration operations resulting from public takeover bids; the Peruvian Merger Control Law establishes that obtaining prior authorization from the Commission is a prerequisite for economic agents to begin the corresponding procedure before the SMV (Superintendence of the Securities Market).

33) Forms available for completing a notification

The Peruvian merger control regime provides two types of notification forms: An Ordinary Notification Form and a Simplified Notification Form, requiring less extensive information.

Parties may use the Simplified Notification Form for filing in the following two instances:

1. When there is no horizontal nor vertical overlap between the economic activities carried out by the economic agents involved in the concentration operation.
2. When the concentration operation consists of the acquisition of sole control over an economic agent by another economic agent which already exercises joint control.

It should be noted, however, that the use of the Simplified Notification Form does not result in a fast-track procedure or any expedited review. The assessment process and applicable deadlines are the same for both types of notification forms.

34) Languages that may be applied in notifications and communication

The filing form and all attached documents must be submitted in Spanish. Any documents in a foreign language must be accompanied by a simple translation, which must indicate the name of the individual who performed the translation.

All notifications and communications from INDECOPI are issued in Spanish.

35) Documents that must be supplied with notification

The information that must be supplied with the notification comprises:

1. Identification information of the notifying economic agent.
2. Identification information of its legal representatives.
3. Description and objective of the concentration operation.
4. Description of the ownership and control structure of each of the economic agents involved in the concentration and their economic groups.
5. Identification of other kinds of relationship between such agents and other companies operating in Peru.
6. Identification and description of the markets involved in the concentration operation.
7. Description of the efficiencies generated by the concentration operation, if extant.
8. Information on parallel notifications in other jurisdictions.
9. Financial statements.

36) Filing fees

Administrative Procedure PA1400F0C4 - Request for prior authorization of a business concentration operation establishes a filing fee of PEN 91,629.40.

37) Is implementation of the merger before approval prohibited?

Yes. The implementation of a concentration operation before its approval is prohibited and constitutes a serious infringement to the Peruvian Merger Control Law. See topic 42.

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

No. The Peruvian merger control regime provides no exception allowing the parties to execute a concentration operation before approval. 

39) Due diligence and other preparatory steps

The Peruvian merger control regime does not impose any explicit restrictions on conducting due diligence or other preparatory activities. However, these actions may only be carried out insofar as they do not amount to the effective implementation of the concentration (i.e., the change of control).

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

The Peruvian merger control regime does not impose any explicit restrictions on veto rights before closing or ”Ordinary course of business” clauses. However, these actions may only be carried out insofar as they do not amount to the effective implementation of the concentration (i.e., the change of control).

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

The Peruvian merger control regime does not impose any explicit restrictions on the implementation of concentration operations outside the jurisdiction before approval. 

42) Consequences of implementing without approval/permission

The implementation of a concentration operation subject to mandatory filing has the following consequences:

1. The lack of legal effects of all acts performed as part or after the execution of the concentration.
2. The imposition of a fine of up to 1,000 Tax Units, or approximately to the notifying agent; provided that the fine does not exceed 10% of the gross sales or income generated by the economic agent, or its economic group, from all economic activities during the fiscal year prior to the sanction.
3. The imposition of corrective measures aimed at reverting the effects of the unauthorized concentration, such as its dissolution or the divestiture of all acquired shares or assets.

43) Phases and deadlines

44) Tests or criteria applied when a merger is assessed

In assessing a concentration operation, the Commission evaluates whether it is likely to produce significant anticompetitive effects in the relevant markets, taking into account the following criteria:

1. The structure of the relevant market.
2. The actual or potential competition between the economic agents in the market.
3. The evolution of supply and demand for the products or services concerned.
4. The sources of distribution and marketing.
5. Legal or other barriers (technological, sunk costs, horizontal or vertical restraints) to market entry.
6. The economic and financial power of the parties involved.
7. The creation or strengthening of a dominant position.
8. The generation of economic efficiencies.

45) May any non-competition issues be considered?

No. Article 21.10 of the Peruvian Merger Control Law explicitly states that the Commission is forbidden to take into account any aspects unrelated to the promotion of effective competition and economic efficiency in the markets for the benefit of consumers.

46) Special tests or criteria applicable for joint ventures

The Peruvian merger control regime provides no special tests or criteria applicable for joint ventures. 

47) Decisions and remedies/commitments available

If deemed to be necessary to mitigate the potential anticompetitive effects of the concentration operation, the Commission may approve a concentration operation subject to conditions aimed at mitigating its anticompetitive effects in the market.

Although the Peruvian Merger Control Law does not establish an exhaustive list of permissible conditions, in practice, the Commission has imposed both structural and behavioral remedies. Behavioral remedies, may be subject to review upon the expiration of the period for which they were imposed.

The conditions may be based on the commitments proposed by the notifying party. See topic 43.

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

Phase I of the procedure is conducted solely with the involvement of the notifying party, the Commission, and any public or private entities that become aware of it through a request for opinion issued by the Commission.

As detailed in topic 43, prior to the beginning of Phase II, the Commission publishes a brief press release to allow third parties the opportunity to join the procedure as interested parties.

Upon conclusion of the procedure, INDECOPI publishes a non-confidential version of the final resolution on its official website, typically after the expiration of the 15 working day appeal period.

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

The merging parties:

The notifying party have access to the file, however, access does not extend to documents or portions thereof that have been deemed as confidential.

Third parties:

Third parties with a legitimate interest, who have been duly admitted to the procedure, have access to the file, however, access does not extend to documents or portions thereof that have been deemed as confidential.

50) Who can appeal and what may be appealed?

The notifying party is allowed to appeal decisions which approve the concentration operation subject to conditions, or which prohibit it, before the Competition Tribunal. The appeal must be filed within 15 working days from the notification of the Commission’s resolution.

Third parties are not entitled to appeal these decisions.

The Competition Tribunal’s decision may be subject to judicial review within 3 months following its notification to the notifying party.