Law No. 27,442 requires transactions involving the acquisition of control over an “enterprise” to be notified to the National Competition Authority when the thresholds set forth in Section 9 thereof are exceeded. In the mining sector, and particularly in the lithium industry, many acquisitions involve companies holding projects that have not yet generated any revenue.
Accordingly, one of the recurring questions when structuring these transactions is whether the acquisition of a company whose main asset consists of mining exploration rights constitutes an economic concentration subject to merger control.
The recent Resolution RESFC-2026-53 of the Tribunal for the Defense of Competition (OPI 395), issued on 1 September 2026 in connection with the acquisition of NRG Metals Argentina by POSCO Argentina, confirms that a project at the exploration stage that generates no revenue of its own does not constitute an “enterprise” for purposes of Section 7 of Law No. 27,442, and therefore the transaction is not subject to notification. This criterion consolidates a line of precedents that provides greater predictability to investors in the sector.
What did the Tribunal for the Defense of Competition decide? POSCO Argentina S.A.U. consulted whether it was required to notify the acquisition of 100% of NRG Metals Argentina S.A., holder of the “Hombre Muerto Norte” lithium project (12 mining rights covering approximately 10,000 hectares in the provinces of Catamarca and Salta), acquired from Lithium South Development Corporation. The Tribunal, endorsing the opinion issued by the Economic Concentrations Secretariat, held that the transaction was not subject to the notification requirement set forth in Section 9.
Criterion applied. The control acquired must relate to an “enterprise,” understood as assets having their own turnover, customer base, and value (OPI 83 YPF/ESSO; OPI 131 IRSA/Banco Río).
Following Conc. 2099 (Puna/Lition-Lithos), OPI 373 (Litos/Lithion), OPI 375 (Cerro Vanguardia), and OPI 393 (Pan American Sur/San Matías Pipeline), exploration rights—as opposed to exploitation rights—do not evidence proven reserves and do not constitute an independent business unit.
Practical relevance. The decision consolidates a consistent doctrine for the mining sector, particularly the lithium industry: the acquisition of special-purpose companies holding projects at the exploration stage and generating no revenue does not require notification, regardless of the size of the acquiring group. This criterion is particularly relevant in light of the entry into force of the mandatory pre-merger notification regime, as it allows the standstill obligation to be ruled out in these transactions.