GUATEMALA Law and Practice Contributed by: Claudia Pereira, Carlos Ortega and Juan Pablo Gramajo, Mayora & Mayora, S.C
lic, with such publication being an additional type of penalty. However, it does not state in which cases publication may be imposed. These are legal deficiencies that could be corrected through amendments, before or after the entry into force of those provisions. If not corrected, they will cause basic limitations to the enforce - A concentration is defined in the Competition Act as the integration of two or more econom - ic agents, previously independent from each other, through any act, contract or agreement resulting in (i) the transfer of control of one of the economic agents to another or to others, or (ii) the creation of a new economic agent under the individual or joint control of others. The Act’s forthcoming Regulation, which has not yet been enacted, could further specify the types of trans - actions falling within this definition. ment of merger control rules. 2.3 Types of Transactions Internal restructurings or reorganisations are exempt from notification when the economic agents belong to the same economic interest group and no third party participates in the con - centration. Operations not involving transfer of shares or assets, such as shareholders’ agreements, can be caught, according to the definition of “con - trol” under the Act. 2.4 Definition of “Control” Control is defined in the Competition Act as the ability of one economic agent to exercise deci - sive influence over one or more other economic agents, through: • the exercise of share or participation rights; • agreements, contracts or conventions which allow decisive influence over the composition,
voting or decisions of the organs or activities of the economic agents; and • the exercise of property rights or rights of use over the assets of economic agents. 2.5 Jurisdictional Thresholds The Competition Act establishes the same thresholds regardless of sector. A transaction is subject to notification if it meets the following criteria: • the combined total assets in Guatemalan ter - ritory of at least two of the economic agents involved exceed 7,000,000 times the daily minimum wage for non-agricultural activities, as shown in the financial statements of the last exercise or annual tax period; and • the combined total turnover in Guatema - lan territory of at least two of the economic agents involved exceed 9,000,000 times the daily minimum wage for non-agricultural activities, considering all revenue excluding discounts, as shown in the financial state - ments of the last exercise or annual tax period. The daily minimum wage for non-agricultural activities is currently GTQ122.40 in the depart - ment of Guatemala (including the capital city) and GTQ116.73 in the rest of the country. This is set annually by the Executive Branch and, since they vary by territory, regulations will have to specify the parameters of applicability, for exam - ple, depending on the location of the economic agents involved in the concentration or of the relevant market, etc. 2.6 Calculations of Jurisdictional Thresholds The Competition Act refers to the financial state - ments of the last exercise or annual tax period for calculating thresholds. Under the Com -
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