Merger control review – Interpretive criteria of the Competition Defense Tribunal regarding notifications filed up to November 17, 2026
On September 18, 2026, the Competition Defense Tribunal (“TDC”) issued Disposition DISFC-2026-29 ( “Disposition”), establishing, on a general basis, its interpretive criteria regarding the control regime applicable to economic concentrations notified during the transition period provided for in Article 84 of Law 27,442 (“LDC”).
See below a summary of the TDC’s rulings in the Disposition.
Regulatory background
As of November 17, 2026, the prior control regime established in Article 9 of the LDC will come into force. This means that, from that date, any transaction that meets the notification thresholds set forth in the LDC and is not subject to any of the statutory exemptions provided therein must be notified to the Economic Concentrations Secretariat (“SCE”) and authorized by the TDC before closing.
Until November 17, 2026, the transitional regime of Article 84 of the LDC remains in effect, which allows notification either prior to or within one (1) week following the closing of a transaction -e.g., a post-closing regime.
Origin of the Disposition
As stated in the Disposition itself, the interpretation of the transitional regime was the subject of multiple inquiries before the SCE and the TDC, both in filings by notifying parties and in various professional discussion forums. As a result, the president of the TDC instructed the opening of an administrative file and requested the SCE to submit a report setting forth the applicable criteria on a general basis. The SCE issued its report on September 17, 2026, and the TDC adopted its conclusions the following day.
Interpretive criteria adopted
The LDC made the entry into force of the prior merger control regime conditional upon the establishment and operation of the National Competition Authority (“ANC”), and Article 84 deferred that entry into force for one (1) year from that event. Decree 810/2025, published in the Official Gazette on November 17, 2025, appointed the members of the ANC, which is why the prior control of economic concentrations in Argentina will come into force as of November 17, 2026.
According to the TDC’s criteria, the notification date determines the applicable regime. The control regime applicable to an economic concentration transaction is therefore determined by the date of its notification to the SCE.
Transactions notified to SCE through November 17, 2026, are subject to the transitional (post-closing) and non-suspensive regime of Article 84, even if closing of such transaction occurs after that date. The subsequent closing of a transaction notified through November 17, 2026, does not constitute early implementation (gun jumping), since, as the TDC has decided, the standstill obligation of Article 9 does not apply to transactions already notified under Article 84 of the LDC.
On the other hand, if a transaction was executed prior to November 17, 2026, but its notification to the SCE is filed after that date, then it will be subject to the suspensive (pre-closing) control regime.
Binding agreement requirement
To fall under the non-suspensive regime of Article 84 of the LDC, the TDC noted that the notification must be supported by a legally binding agreement between the notifying parties (from which the obligation to implement the transaction on the notified terms arises).
Letters of intent, memorandum of understanding, term sheets, non-binding offers, and any other preliminary document that does not obligate the parties to implement the transaction, regardless of its denomination, do not satisfy this requirement.
Furthermore, if the closing of a transaction is subject to precedent conditions -regulatory approvals in the country or abroad, or other events beyond the discretionary control of the parties- this does not affect the binding nature of the agreement and does not preclude its notification.
Effects of the transaction
The application of the non-suspensive regime does not entail any ruling on the effects of the transaction on competition, nor does it consolidate any legal position. This means that the powers of Article 14 of the LDC will be applied in due course, and therefore the TDC may (a) authorize, (b) subject the transaction to conditions, or (c) deny its authorization. In this sense, the TDC may order remedies, including divestments or restoration of the pre-transaction status quo.
The closing of a transaction without a prior ruling by the ANC will be at the exclusive risk of the notifying parties.
General scope of Disposition
The Disposition applies to all transactions notified through November 17, 2026, whose closing has not occurred by that date.
The TDC considered that resolving the matter through individual rulings would have entailed a waste of its activity, with the consequent risk of divergent outcomes, and that setting the criteria on a general basis provides predictability and equal treatment to the parties.
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