On September 18, 2026, the Competition Defense Tribunal (“TDC“) of the National Competition Authority (“ANC“) issued Ruling 29/2026 (the “Ruling“)¹, whereby it established, on a general basis, the interpretive criterion applicable to economic concentration transactions notified during the transitional period set forth in Article 84 of the Antitrust Law No. 27,442 (“LDC“), based on a Report prepared by the Secretariat of Economic Concentrations (“SCE“).
The TDC adopted this criterion through a general-scope ruling on the understanding that the issue is not specific to any particular transaction: any transaction notified up to November 17, 2026, whose closing has not taken place by that date, may raise the same question. Resolving the issue through individual rulings would waste the TDC’s efforts, which would have to repeatedly rule on the same question, with the resulting risk of divergent solutions. The general criterion provides predictability, legal certainty, and equal treatment to the companies involved in a concentration and their advisors.
- The Transition to the Pre-Merger Control Regime
The formal establishment of the ANC, ordered by Executive Decree 810/2025, published in the Official Gazette on November 17, 2025, triggered the one (1) year term set forth in Article 84 of the LDC, pursuant to which the first paragraph of Article 9 will enter into force at 00:00 hours on November 17, 2026.
From that moment on, the merger notification regime in Argentina will shift from an ex post system — under which notification may be made voluntarily beforehand or within the week following closing (Art. 84, LDC) — to an ex ante system with suspensive effect: economic concentration transactions covered by Article 7 of the LDC must be notified to the ANC and authorized before the act is perfected or control is acquired (Art. 9, LDC). The standstill obligation imposed by that article prohibits closing and taking control of the transaction until the ANC’s authorization has been obtained, and its violation constitutes premature implementation (“gun jumping”).
The question addressed by the Ruling is the following: what regime applies to transactions notified prior to November 17, 2026, whose closing takes place after that date? The interpretation of the transitional regime had been repeatedly raised with the ANC, both in filings by notifying parties and in various professional discussion forums.
- The Criterion Adopted by the TDC
- 2.1 The Notification Date Determines the Applicable Regime
The Ruling establishes that the control regime applicable to an economic concentration transaction is determined by the date of its notification to the ANC, and does not change merely due to the passage of time during the review procedure (Art. 1).
Accordingly:
- Transactions notified before 00:00 hours on November 17, 2026, remain subject to the transitional, non-suspensive regime of Article 84 of the LDC, even if their closing takes place after that date (deferred closing).
- Transactions notified from that time onward are subject to the suspensive regime of Article 9 of the LDC, regardless of the date the agreement was executed.
As stated by the TDC in its recitals, allowing the applicable regime to change merely due to the passage of time during the proceeding would translate into a new and more burdensome obligation for those who duly complied with their duty to notify, arising from the length of the authority’s review. The criterion operates in both directions: a transaction whose agreement was executed before November 17, 2026, remains equally subject to the suspensive regime if its notification takes place after that date.
- 2.2 A Later Closing Does Not Constitute Premature Implementation
The TDC clarified that the perfection, after November 17, 2026, of a transaction notified before that date does not constitute premature implementation, since the standstill obligation imposed by Article 9 of the LDC does not apply to transactions already notified under the Article 84 regime.
- 2.3 Closing at the Notifying Parties’ Own Risk
The SCE Report — to which the TDC refers in its analysis — warns that the perfection of a notified transaction that is in a position to close, without a ruling under the terms of Article 14 of the LDC yet having been issued, takes place at the sole risk of the notifying parties: it does not limit the measures the TDC may adopt — including subjecting the transaction to conditions or denying authorization under Article 14, subsections b) and c), of the LDC — nor does it preclude a potential order for divestiture or restoration of the situation prior to the transaction.
- 2.4 Reservation of Authority to Condition or Deny the Transaction
The Ruling expressly clarifies that Articles 1 and 2 do not constitute any ruling on the transaction’s effects on competition, nor on the exercise of the authority granted to the SCE and the TDC under Article 14 of the LDC to subject approval of the transaction to structural or behavioral conditions (Art. 3).
- Requirement: A Legally Binding Agreement
The Ruling establishes as a requirement that the notification be supported by a legally binding agreement between the notifying parties, executed by persons with sufficient authority, from which the obligation to implement the transaction on the terms notified arises (Art. 2).
The TDC — in line with what was stated by the SCE — holds that this requirement is not satisfied by preliminary instruments that do not obligate the parties to implement the transaction, whatever their designation — including, as a rule, letters of intent, memoranda of understanding (MOUs), term sheets, and non-binding offers.
What is required is an agreement executed by the parties’ representatives with sufficient authority (for example, a stock purchase agreement — SPA —, an asset purchase agreement, a preliminary merger commitment, etc.), not a completed transaction. The fact that closing is subject to condition precedents — including regulatory approvals in Argentina or abroad, or the occurrence of events beyond the parties’ discretionary control — does not affect the binding nature of the agreement, nor does it prevent its notification.
According to the SCE Report, this requirement is especially important during the transitional period: allowing the notification of transactions lacking binding documentation would open the door to “protective” filings, based on incipient or hypothetical negotiations for the sole purpose of obtaining application of the non-suspensive regime, which would distort the transition intended by the legislature.
- Toward the Full Pre-Merger Control Regime
Starting at 00:00 hours on November 17, 2026, every economic concentration transaction covered by the LDC will require the ANC’s prior authorization as a condition for closing. Parties should take this into account from the initial stages of structuring the transaction, anticipating review periods and including the corresponding contractual provisions.
The Ruling was published on the ANC’s website and will soon be published in the Official Gazette.
This legal update does not constitute legal advice. If you need legal advice, please do not hesitate to contact TCA’s Antitrust team:
Bernardo Cassagne (bcassagne@tca.com.ar) – Partner
Francisco Rondoletti (frondoletti@tca.com.ar) – Partner
Godofredo Ortiz (gortiz@tca.com.ar) – Associate
Available at: https://www.argentina.gob.ar/sites/default/files/03_-_disposicion_tdc_alcance_general_art_84_oficial_disfc-2026-29.pdf
