General Statistics on Merger Control in Peru (June 2021–May 2025)

Since the entry into force of Law 31112 – Merger Control Law (June 2021), the National Institute for the Defence of Competition and Protection of Intellectual Property (INDECOPI) has had quite active years in the implementation and development of the merger control regime. This has provided some interesting data, as described below. 

• From June 2021 (when Law 31112 came into force) to May 2025 (as per the public information available), the Commission has received a total of 72 requests for transaction authorisation.
• Of the total number of applications received (72), the authority has approved four transactions with remedies and denied one transaction. INDECOPI tends to approve the vast majority of authorisation requests without conditions.
• The remedies occurred in the telecommunications, energy, pharmaceutical and construction markets. The denied operation occurred in the sugar production market.
• None of the resolutions issued by INDECOPI on merger control have been questioned through administrative or judicial appeals.
• Two types of remedies have been approved by INDECOPI: behavioural and structural.
1. When INDECOPI has detected competition problems in vertical relationships (occurring between companies operating at different levels of the production chain), it has approved behavioural remedies such as:
1. the reduction of the terms of the exclusivity agreements; and
2. the obligation to hold tenders when the company wants to source an input necessary for its production.
2. When INDECOPI has detected competition problems in horizontal relationships (occurring between companies competing in the same market), it has approved structural or quasi-structural remedies such as the sale or licensing of trade marks of the companies involved.
• The authority has always complied with the legal deadlines for Phase I and Phase II, pronouncing on several occasions in shorter deadlines than those established by the law (three to five days less). It is worth mentioning that the authority is obliged to comply with the legal deadlines established by current regulations; otherwise, positive administrative silence is applied (ie, if the authority does not resolve within the legal deadlines, the transaction is understood to have been approved).
• Regarding the criteria applied in the analysis of transactions, during the four years of implementation of Law 31112, INDECOPI has remained technical and aligned with international standards. A large part of INDECOPI’s analysis is to review the following elements: market structure (based on indices such as the Herfindahl-Hirschman Index – HHI and market share), barriers to entry (difficulty in entering the market) and competitive pressure (the existence of important competitors).
• In line with the international trend, INDECOPI has accepted the non-compete or non-solicitation agreements in transactions. However, it has established certain parameters for such agreements to be considered valid in a transaction:
1. the agreement must not have a duration of more than three years. Up to five years is allowed in justified situations;
2. the agreement must only cover the economic agents involved in the transaction;
3. the agreement must be limited to the economic activity carried out by the target; and
4. the agreement must be limited to the geographical area where the target carries out its economic activities.
• Under the Merger Control Law, INDECOPI has the power to investigate closed transactions that did not meet the jurisdictional thresholds within a year from their completion on an ex officio basis if the concentration is considered as one that can create a dominant position or that has the potential to restrict competition. As of May 2025, INDECOPI had not initiated ex officio cases.
• As of May 2025, INDECOPI had not sanctioned any company for not mandatorily notifying a transaction. However, in most of the important transactions that have not been notified and that have been advertised (through the media or specialised magazines), the authority has played an active role, sending information requests and conducting interviews to find out the reasons for the lack of notification.
• Finally, from the entry into force of the Merger Control Law to the date of preparation of this article, INDECOPI has issued the following guidelines:
1. Thresholds Calculation Guidelines, focused on establishing the rules to determine whether the notification thresholds are met;
2. Guidelines for the Qualification and Analysis of Concentration Operations, focused on explaining the aspects that must be analysed to determine if a transaction qualifies as an act of concentration and the elements to be considered for the evaluation of the risks of the operation; and
3. a practical guide together with the Superintendency of Banking, Insurance and Private Pension Funds Management Companies (SBS), which aims to guide in which cases applications for authorisation must be submitted to INDECOPI, the SBS, or both agencies.

Relevant Decisions

Pharmaceutica Euroandina/Hersil

In 2022, Pharmaceutica Euroandina S.A.C (an economic group dedicated to the production and marketing of pharmaceutical products) requested authorisation from INDECOPI to acquire the company Hersil (a company also dedicated to the production and marketing of pharmaceutical products).

This concentration raised concerns regarding restrictions on competition that could result in certain drug markets. In September 2022, INDECOPI issued a decision approving such operation subject to conditions (which were previously offered by the acquirer). It was the first transaction where INDECOPI approved remedies, under Law 31112.

Such conditions were related to the licensing of the trade marks of the categories of medicines which were under scrutiny for a period of five years (after such period the authority will assess if it is necessary to amend or remove such conditions).

CSGI/Enel

In 2023, China Southern Power Grid International (CSGI) requested authorisation from INDECOPI to acquire the company Enel Distribución Perú S.A.A. (a company dedicated to the distribution of electricity in the north of Lima, Peru’s capital city).

This transaction was cleared with the condition that all energy purchases made by Enel be made through a tender process.

KKR/Telefónica/Entel

In 2023, Kohlberg Kravis Roberts (KKR), through its subsidiary Pangea LuxCo S.à.r.l.; Telefónica Hispanoamérica, S.A. (Telefónica) and Entel Perú S.A. (Entel) requested authorisation from INDECOPI to form a joint venture to operate the current fibre optic networks of Telefónica and Entel.

INDECOPI applied remedies upon verifying that the transaction included contractual conditions between Pangeaco and Entel that could generate barriers that prevent the entry or expansion of current or potential competitors in that market. For example, one of the conditions imposed was that the time of the wholesale non-compete clause be reduced from 15 to three years; the obligation of exclusive purchase from 15 to five years and the clauses of right of first offer, right to match and retail non-competition be eliminated.

As publicly reported by the companies involved, the transaction was not finally closed, due to unrelated reasons. 

Sika/Chema Group

In 2023, the Swiss company Sika AG, through its subsidiary Sika Perú S.A.C (Sika), requested authorisation from INDECOPI to acquire the Peruvian companies of the Chema Group.

This concentration raised concerns regarding restrictions on competition that could result in certain construction material markets. In 2024, INDECOPI issued a decision approving such operation subject to conditions (which were previously offered by the acquirer).

These conditions were related to the sale and licensing of some brands of the Chema Group to a third company that could compete effectively in the markets in which potential risks to competition derived from the concentration were identified

Agroaurora/Agrícola Chira

In 2023, Agroaurora S.A.C. (a company dedicated to the production and sale of sugar) applied to INDECOPI for authorisation to acquire Agrícola del Chira S.A. (a company that is also engaged in the production and sale of sugar).

INDECOPI identified that there are significant risks in the sugarcane acquisition market due to the fact that the acquiring group would have more than 80% market share; and, in the domestic sugar marketing market in the wholesale channel at the national level, where the acquiring group could have more than 50% share.

During Phase II of the procedure, Agroaurora submitted a proposal for remedies aimed at mitigating or eliminating the risks preliminarily identified by INDECOPI. However, these remedies were discarded by INDECOPI because they were not effective in re-establishing the competition that would be lost as a result of the operation.

In the absence of adequate remedies, INDECOPI decided not to authorise the transaction. This is the first operation whose authorisation is denied by the authority.

Constitutional Claim Against the Regulations of the Merger Control Law

In September 2021, a group of Peruvian lawyers filed a constitutional lawsuit against the Regulation of the Merger Control Law (Supreme Decree No 039-2021-PCM), arguing that the power granted to INDECOPI to review mergers went beyond the provisions of Law 31112 (Merger Control Law), so it would violate the principle of legality and affect the predictability of the market and investments. In this line, they requested that INDECOPI’s power to review transactions that did not exceed thresholds be declared illegal.

In 2022, the Superior Court of Justice of Lima declared, through a ruling, the legality of the Regulation of the Merger Control Law, confirming that INDECOPI has the power to review mergers ex officio up to one year after they are carried out and that they are below the thresholds established in the regulations.

In 2024, the Supreme Court of Justice of Lima ratified the decision issued by the Superior Court of Lima.

Trends and Outlook for 2025

M&A

The review of transaction notifications by INDECOPI depends directly on the number of M&A transactions that occur in the market. Therefore, the projection of M&A transactions in the market influences the number of transactions that INDECOPI will review this year. 

So far in 2025, Peru has shown relative macroeconomic stability. Effective inflation management across the region could continue to attract foreign investment and stimulate M&A activity. Companies may look to consolidate to improve efficiency, enter new markets, acquire technology and capabilities, and gain other strategic advantages.

At the same time, investment by Chinese companies in Latin America – particularly in Peru – is on the rise, spurred in part by the upcoming inauguration of the Port of Chancay in November 2024. Chinese interest is especially strong in sectors such as mining, infrastructure, transportation and energy, with potential expansion into technology.

Nevertheless, it is important to consider that Peru’s presidential elections are scheduled for 2026. This could lead to increased investor caution in the second half of 2025, as political and economic uncertainty rises. Historically, M&A activity tends to slow during the fourth year of a government term (Peruvian presidential terms last five years), with many companies opting to wait for clarity regarding the next administration’s policy direction. Political uncertainty may also contribute to financial market and exchange rate volatility, potentially affecting company valuations and the feasibility of certain transactions.

Merger control regime

As of May 2025, INDECOPI is evaluating seven requests for authorisation of transactions. Considering the conditions of the M&A market, it is expected that in 2025, the authority will receive a number of applications like 2024 (between 20 and 25 requests for authorisation of transactions) or slightly lower (influenced by political noise in the second half of 2025).

On interesting cases in progress, this year the authority will have to decide on a case that is currently in Phase II, linked to the hydrocarbons market. The authority is expected to resolve this case at the beginning of the second half of 2025.

In addition, following the trend of recent years, in 2025, INDECOPI could start Phase II in one or two cases. It is necessary to specify that, historically, since 2022, INDECOPI has started Phase II in at least one case per year, with 2023 being the year where the most cases went to Phase II (four cases). Almost all the cases that have passed to Phase II have finally been approved with remedies (except for a case that was denied).

No regulatory projects or proposals have been presented by the INDECOPI or the Congress of the Republic of Peru specifically related to the Merger Control Law. Therefore, there are no changes expected to be made to the law in 2025.

Finally, since the authority has gained more experience in negotiating remedies, it is expected to issue the Remedies Guidelines this year. Following INDECOPI’s practice, it is very likely that the guidelines will be published in advance for public opinion and comment.