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What are the potential outcomes of the merger investigation? Please include reference to potential remedies, conditions and undertakings.
In Phase I the ACM assesses whether it has reasons to assume that the concentration could lead to a significant lessening of competition in the Dutch market or a part thereof. If the ACM has no reasons to assume that this may be the case, it will issue a decision declaring that the concentration does not require a permit. Subsequently, the parties are allowed to implement the transaction.
If the ACM has reasons to assume that the concentration could lead to a significant lessening of competition on the Dutch market or a part thereof, the ACM will issue a decision declaring that a permit is required for the concentration. In that case, the parties are not (yet) allowed to close the transaction. The ACM may attach conditions and obligations to a decision declaring that no permit is required.
In Phase II cases, the ACM will grant a permit if it concludes that the concentration does not lead to a significant lessening of competition on the Dutch market or a part thereof. Conversely, the ACM will refuse a permit in case the concentration leads to a significant lessening of competition on the Dutch market or a part thereof. In such cases, the concentration is prohibited. The ACM may attach conditions and obligations to a permit.
It is possible for the parties to offer remedies in Phase I and in Phase II. In 2007 the ACM issued Remedies Guidelines that are closely modelled on the European Commission’s Notice on Remedies (OJ 2008/C 267/1). From these guidelines, it follows that the ACM expects that the case parties take the initiative and propose adequate remedies that address the ACM’s concerns. In addition, the ACM prefers structural remedies over behavioural remedies (although purely behavioural remedies may be accepted in exceptional cases). In case of divestitures, the parties have a choice between a fix-it-first remedy (meaning that the main concentration may be accomplished only after the divestiture) and a remedy by which the parties are given a timeframe within which an appointed trustee must sell the activities to be divested to a third party. In the latter case, the parties may already accomplish the main concentration on the condition that the activities to be divested are placed under the supervision of the trustee, whose appointment must be approved by the ACM. If the activities are not divested within the given timeframe, the trustee is to set up an auction in which the activities are to be sold at no minimum price. A divestiture package must consist of economically sound businesses that are able to function on a stand-alone basis. In all divestiture remedies, the ACM must also approve the buyer. The ACM will reject the buyer in case its identity raises prima facie competition concerns, or in case it believes that it does not have the resources to maintain the divestiture package as a serious competitor to the merged entity. In some cases, the ACM may demand a fix-it-first remedy. It will do so in particular if it has doubts as to whether a suitable buyer can be found.
The violation of conditions and obligations attached to a merger control decision of the ACM is punishable with a fine of up to €900,000 or 10 % of an undertaking’s (worldwide group) turnover – whichever is the greatest. These maximum amounts are doubled in cases of recidivism within five years.
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