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What are the potential outcomes of the merger investigation? Please include reference to potential remedies, conditions and undertakings.
The Competition Commission (ComCo) can clear a concentration, prohibit it or clear it with conditions and/or obligations. Technically, only decisions prohibiting the transaction or clearing it with conditions and/or obligations are issued as formal decisions; while decisions permitting a transaction are issued as notices.
If ComCo feels that the transaction would create competitive issues, it will ask the parties to propose remedies. Regarding procedure, there is no standardised procedure for negotiating remedies. Parties can begin negotiating remedies during the pre-notification procedure. It is also possible to negotiate remedies in Phase I, although this is rare, except in cases where remedies have agreed in the parallel proceeding before the European Commission in Phase I and where the secretariat has required the parties to commit to the same remedies in regard to Switzerland. In purely domestic transactions, remedies often are negotiated after the parties have received the statement of objections of the secretariat in Phase II.
Regarding the substance of remedies, ComCo prefers structural to behavioural remedies. However, there have been numerous cases where ComCo has accepted behavioural remedies.
In cases that have been filed in multiple jurisdictions and where remedies have been imposed by a foreign competition authority, ComCo has often requested a commitment from the parties to adhere to these remedies in case of similar competitive issues in Switzerland.
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