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Content last updated: 04-03-2020

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  • Merger Screening

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

Transactions involving a concentration are caught by the merger control regime. A “concentration” is defined as follows:

  • a merger;
  • formation of a joint venture;
  • direct or indirect acquisition of control over other companies through different means, such as the acquisition of shares, participations, or through any other contract or legal figure that confers direct or indirect control of a company;
  • acquisition of productive assets that perform activities in the electricity sector, providing that the acquisitions of these productive assets increase the participation of the acquirer or its economic group in the development of activity in any of the electricity markets (generation, transmission or distribution).

According to the upcoming regulations, economic concentration transactions within the scope of the law entail a transfer or change in the permanent control of a company or part of it – for example, as a consequence of one of the following events:

  • merger between two or more previously independent economic agents;
  • acquisition by one or more economic agents of rights that allow them to exercise control over the whole or part of one or more economic agents;
  • formation by two or more independent economic agents of a joint venture or a similar contractual arrangement that entails the acquisition of joint control over one or more economic agents, in such a way that the last agent acts permanently as an autonomous economic entity;
  • acquisition by one economic agent of the direct or indirect control over productive assets of one or more different economic agents.

2. Establishing jurisdiction for notification of mergers

2.1 Merging parties/undertakings concerned

2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1.

The undertakings concerned are those in the local market, including the companies in the group of the undertakings involved in the transaction.

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

Merger filing legislation is currently only in force in the electricity sector. Merger filing is needed if:

  • the undertakings concerned operate in the electricity sector, and the transaction is a horizontal merger, and the combined market share of the undertakings concerned is at least 15% in Peru, or
  • the undertakings concerned operate in the electricity sector, and the transaction is a vertical merger, and the combined market share of the undertaking concerned is at least 5% in Peru or any of the markets involved.

A new act regulating merger control across all sectors has been passed in Peru. This new act is pending approval by Congress and is expected to come into effect in July or August 2020.

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