Appeals Against Resolutions On An Advisory Opinion: When Does An Adverse Outcome Entail Sufficient Grounds?

Author:Mr Alfredo O'Farrell and Miguel Del Pino
Profession:Marval O'Farrell & Mairal
 
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A ruling of the Federal Court of Appeals sets out a new perspective on what would be the grounds for the filing of appeals against Advisory Opinions.

Introduction

In a recent ruling ("Talanx International AG and others v. Antitrust Commission"), the Federal Civil and Commercial Court of Appeals (the "Court of Appeals") rejected an appeal filed against a resolution issued by the Secretary of Domestic Trade (the "Secretary") by means of which it ordered the notification of a transaction. This ruling sets out a new perspective on what would be the grounds for the filing of appeals against Advisory Opinions.

Analysis

On July 10, 2012, Room I of the Court of Appeals issued a ruling by means of which it rejected the appeal filed by Talanx International AG and Messrs. Antonio Tedin and Marcelo Fabiano against Resolution No.106 dated July 27, 2011 issued by the Secretary (the "Resolution"). The challenged Resolution had been issued in the context of the Advisory Opinion submitted before the Argentine Antitrust Commission (the "Antitrust Commission") in order to determine whether a transaction was subject to merger control as set out by Law No. 25,156 (the "Antitrust Law").

Pursuant to the Resolution, the parties that had requested the Advisory Opinion had to notify the proposed transaction due to the fact that the exemption set out by Section 10, sub-section c) of the Antitrust Law was not applicable. In its analysis of the case, the Antitrust Commission considered that said exemption was not enforceable, since one of the companies of the economic group of the purchaser, Hannover, offered services of reinsurance in favor of insurance companies that operated in the Argentine market and thus "an independent businesses volume, with clients and own value could be attributed, thus being able to generate matters of economic nature".

The appealing parties requested that the transaction be exempted from the merger control procedure. In their opinion, the Secretary erred in considering that the exemption provided by Section 10, sub-section c) of the Antitrust Law would not be applicable to the case since the acquiring party was not the holder of shares or assets in Argentina as textually set out in Antitrust Law and, moreover, the volume of business of the transaction did not surpass the threshold requested under Section 8 of the Antitrust Law.

Pursuant to Section a.5) of the Schedule of Resolution No. 26/2006 of the Secretary of Technical Coordination, the resolutions...

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