GUATEMALA Law and Practice Contributed by: Claudia Pereira, Carlos Ortega and Juan Pablo Gramajo, Mayora & Mayora, S.C
2.9 Market Share Jurisdictional Threshold
mercial Code, merchants must apply generally accepted accounting principles (GAAP) when preparing their statements. Further details on how to calculate the thresholds should be con - tained in the Regulation to the Act, which has not yet been enacted. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds The Competition Act refers to the total combined assets or turnover of “at least two of the eco - nomic agents involved” in the concentration. An economic agent is defined in the Act as any individual or entity, economic group, public or private entity, local or foreign, for-profit or non- profit, carrying out an economic activity, which in turn is defined as all forms of production and/or commercialisation of goods and/or provision of services aimed at generating economic benefits. An economic group is defined as two or more economic agents that co-ordinate their activi - ties through common share control or common administrative control. Further details on how to calculate the thresh - olds should be contained in the Regulation to the Act, which has not yet been enacted. 2.8 Foreign-to-Foreign Transactions All transactions involving assets or turnover in Guatemalan territory are subject to control, if they meet the applicable thresholds. The Com - petition Act specifically mentions operations that take place abroad but have legal or material effects in Guatemalan territory. Further details on how to calculate the thresholds should be contained in the Regulation to the Act, which has not yet been enacted.
The Competition Act does not establish market share thresholds. However, market share is one of the elements that must be considered when examining the proposed operation. 2.10 Joint Ventures Based on the broad language of the Act’s defini - tion of an economic concentration, a joint ven - ture could be considered as a way of achieving such concentration and therefore be subject to merger control provisions. Further details on specific operations subject to control and how to calculate the thresholds should be contained in the Regulation to the Act, which has not yet been enacted. 2.11 Power of Authorities to Investigate a Transaction The Superintendence can investigate “irregular concentrations” based on a formal complaint or ex officio. However, concentrations are deemed irregular only if they exceed the thresholds, therefore transactions that do not meet the thresholds cannot be subject to penalties. The investigation may reveal that the concentration did not meet the thresholds and, consequently, may not be legally considered as irregular. 2.12 Requirement for Clearance Before Implementation The Competition Act requires authorisation to be requested before: • executing the legal act; • acquiring or exercising direct or indirect fac - tual or legal control; • formalising a merger agreement; • another authority issues a decision; or • a transaction made abroad produces legal or material effects in Guatemala.
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