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What are the potential outcomes of the merger investigation? Please include reference to potential remedies, conditions and undertakings.
The Competition Board may either render a clearance or a prohibition decision. It may also give a conditional approval. Where the board grants conditional approval to mergers and acquisitions, such transactions may be implemented, provided that measures deemed appropriate by the board are taken and the parties comply with certain obligations. In addition, as per Article 14 of Communiqué 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board, the parties may propose additional divestment, licensing or behavioural commitments to help resolve potential issues that may be raised by the board. As per the Guideline on Remedies Acceptable in Mergers and Acquisitions, it is at the parties’ own discretion whether to submit a remedy. The board will neither impose any remedies nor ex parte change the submitted remedy. In the event that the board considers the submitted remedies insufficient, the board may enable the parties to make further changes to the remedies. If the remedy is still insufficient to resolve the competition problems, the board may not grant clearance.
The parties may submit to the board proposals for possible remedies together with the notification form, during the preliminary review or the investigation period. If the parties decide to submit the commitment during the preliminary review period, the notification is deemed filed only on the date of the submission of the commitment. In any case, a signed version of the commitment text that contains detailed information on the context of the commitment and a separate summary should be submitted to the authority.
The form and content of the divestment remedies vary significantly in practice. Examples of the board’s pro-competitive divestment remedies include divestitures, ownership unbundling, legal separation, access to essential facilities and obligations to apply non-discriminatory terms. As per the remedies guideline, the parties must submit detailed information regarding how the remedy would be applied and how it would resolve competition concerns. The remedies guideline states that the parties can submit behavioural or structural remedies. It explains acceptable remedies such as:
- ending connections with competitors;
- remedies that enable undertakings to access certain infrastructure (eg, networks, intellectual property and essential facilities); and
- remedies on amending a long-term exclusive agreement.
The board conditions its clearance decision on the application of the remedies. Whether the parties may complete the merger before the remedies have been complied with depends on the nature of the remedies. Remedies may be either a condition precedent for the closing or an obligation post-closing of the merger. The parties may complete the merger if the remedies are not designed as a condition precedent for the closing.
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