Use the Lexology Navigator tool to compare the answers in the article with those from 20+ other jurisdictions.
What are the potential outcomes of the merger investigation? Please include reference to potential remedies, conditions and undertakings.
The FCCA may approve the concentration with or without conditions, or may propose to the Market Court that the concentration should be prohibited. The Market Court may then approve the concentration with conditions (which may be different from the ones submitted to the FCCA) or prohibit the concentration.
The parties may propose remedies for potential competition issues. It is up to the notifying party to propose sufficient remedies. Pursuant to the Competition Act, the FCCA cannot impose conditions on a concentration that are not approved by the notifying party. This effectively means that the parties must propose remedies early enough so that the FCCA can properly assess them within the relevant time limits. Recent two prohibition proposals made by the FCCA were based on the view that sufficient remedies had not been offered early enough.
The preparatory works of the Competition Act state that mainly structural remedies (eg, divestments) should be used in merger control cases. The FCCA favours structural remedies over behavioural ones, and notes in its Guidelines on Merger Control that remedies which are ordered to be followed are usually structural. However, examples of clearing concentrations based only on behavioural remedies can also be found in the FCCA's practice in situations where they are found appropriate and sufficient to counter the problems identified.
Click here to view the full article.