The Superintendence of Market Power Control (SMPC), due to the current status of filings of mergers and acquisitions, the economic consequences of the pandemic and the high probability that more of these operations will be carried out, on April 20, 2020, issued two resolutions related to economic merger notification processes.

  • Fast track resolution: [1] As in other jurisdictions, an abbreviated procedure was implemented for the authorization of merger control operations. In this resolution, the SMPC reformed the SMPC Administrative Procedural Management Instructive and created this new and necessary method for approving mergers that, having to be notified, do not warrant an analysis as profound as others due to their impact on the market.

Thus, the following cases may be subject to the abbreviated procedure:

  1. That the buyer or acquirer does not carry out economic activities in Ecuador;

  2. That in horizontal (between competitors) and in vertical (between suppliers and customers) concentrations, the joint market share of those involved does not exceed 30% in the relevant market or relevant markets;

  3. That, in vertical and horizontal concentrations, a significant concentration level is not reached (Herfindahl-Hirschman index (“HHI”)

  4. That the operation involves economic operators who are at risk of bankruptcy.

In general, it is expected that for these cases the approval process for economic concentration filings will be reduced from 4-6 months in the normal process to 1 month in the abbreviated process.

This resolution also made minor changes to the regular notification procedure for economic concentration operations.

  • Resolution of lifting of terms: [2] the objective of this resolution is to reactivate the processing of certain operations of economic concentration notified for the approval of the SMPC that, by mandate of the Resolution of March 16, 2020 issued by the SMPC, were suspended.

This reactivation only applies as long as the requirements indicated below are fulfilled both for operations already notified and for those that have not yet been notified.

For merger operations already notified, the lifting of the suspension is applicable as long as the SMPC has the information necessary to issue a resolution.

On the other hand, for operations that have not yet been notified, they must be notified to the SMPC and processed by this Authority, provided that: (i) the SMPC has sufficient information on the markets affected by the operation and that this information is updated to 2018 and / or 2019 or (ii) is an operation that may be processed through the new abbreviated procedure implemented by the SMPC.

The SMPC will notify the procedures whose suspension is lifted.

It is worth noting that ALL the other procedures that are substantiated before the SMPC, of mergers or acquisitions, or of any other nature that do not comply with the provisions of this resolution remain suspended until further notice from the Authority.

[1] Resolution No. SMPC-DS-2020-18. Available at: https://www.SMPC.gob.ec/sitio/wp-content/uploads/2020/04/RESOLUCION-SMPC-DS-2020-18.pdf

[2] Resolution No. SMPC-DS-2020-19. Available at: https://www.SMPC.gob.ec/sitio/wp-content/uploads/2020/04/RESOLUCI%C3%93N-SMPC-DS-2020-19.pdf

 

* This newsletter is authored by Fabara Abogados, meets a merely informative objective and does not correspond to a legal opinion, nor can it be used as legal advice.