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What are the potential outcomes of the merger investigation? Please include reference to potential remedies, conditions and undertakings.

According to Article 2.6 of Superintendence of Industry and Commerce (SIC) Resolution 12193, in accordance with Articles 11 and 12 of Law 1340, the potential outcomes of a merger investigation are:

  • authorisation of the transaction;
  • authorisation of the transaction subject to certain conditions or obligations; or
  • rejection of the transaction.

If the integration is authorised under certain conditions or obligations, the SIC will periodically monitor the parties’ compliance with the imposed conditions. Failure to comply with the conditions may trigger the imposition of fines or the dissolution of the transaction.

According to Article 12 of Law 1340, the SIC may refrain from rejecting a transaction if the parties can demonstrate, with technically grounded studies, that the benefits of the transaction for consumers are greater than its potential negative impact on competition, and that such benefits cannot be achieved by any other means (the efficiency exception). Further, the parties must ensure that the alleged benefits will in fact benefit consumers.

If a transaction is authorised based on the efficiency exception, clearance is understood to be conditioned on the parties’ behaviour, which must accord with the arguments, studies and commitments submitted when requesting application of the efficiency exception.

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