COMPARATIVE LAW EXPERIENCES: REFUSAL FROM SERVICE PROVIDERS 227 If the applicant was not the first person to apply for the benefit, it might be eligible for a reduction of between 50% and 20% of the fine, if it provides further evidence to the investigation. Furthermore, the Antitrust Law establishes that a person who fails to qualify for the leniency program during the investigation phase but discloses and recognises a second cartel in another market may benefit from a 30% reduction of the sanction or fine that would otherwise be applicable for its involvement in the first cartel. This is internationally known as “leniency plus”. The creation of an ex-ante control system for economic concentrations – although Law No. 25156 originally set forth an ex-ante control system for economic concentrations, its regulations finally turned the mentioned system into an ex-post control. The Antitrust Law now returns to the original ex-ante control, the most widely adopted system by laws on the matter, worldwide. Undoubtedly, this change is the one that raises more concern. Indeed, it should be noted that with the enforcing authorities under Law No. 25156, until December 2015, the average time frame for approval of an economic concentration transaction was around three years. Even now that current authorities have significantly reduced this period, there is still a long way to go before it becomes possible to grant approvals within 30 days for transactions that do not pose major problems from a competition standpoint. This issue will present a key challenge to current authorities if they do not want to become an obstacle to the investments that the current government intends to attract. In the long term, we should ask ourselves what would happen if this ex-ante control system was enforced by less scrupulous and market-oriented authorities than those currently in office. The Antitrust Law sets forth new terms for the Authority to review economic concentration transactions. In principle, said review should be performed within a 45-day term as of the notification, to the extent that the provided information is complete and correct (however, the Authority may take a long time to assess whether the information is complete, thus delaying the start of the review term as it currently happens). If after 45 days the Authority has not reached a conclusion, the transaction will be deemed approved. If the transaction may potentially restrict competition, the Authority shall notify of its objections in writing and it shall set a special hearing to consider the potential restrictions. In these cases, the term to issue a decision may be extended for up to 120 additional days. Also, a fast-track proceeding is established for economic concentration transactions which, in the opinion of the Authority, may be less likely to restrict or distort competition.
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