What kind of remedies are acceptable to the authority? How often are behavioural remedies accepted in comparison with major merger control jurisdictions, such as the EU or US?
Merger Control (2nd Edition)
Where competition problems are identified, remedies in the form of structural, behavioural or a combination of structural and behavioural, undertakings may be negotiated.
Remedies offered at the end of the first-phase review with a view to avoiding a second-phase investigation are known as 'undertakings in lieu'. These need to be 'clear cut' solutions to the competition concerns. As such, structural remedies, in particular divestments, are likely to be considered more suitable than behavioural remedies. There is also a stated preference for structural remedies during the second-phase investigation.
There are examples of behavioural remedies being accepted by the CMA and its predecessors and, generally, the CMA is reasonably flexible regarding remedies.
Where divestments are required, but the CMA has doubts regarding the attractiveness of the divestment business to purchasers, or otherwise doubts the availability and interest of suitable purchasers for the business, the CMA will usually seek an 'up-front buyer' remedy. Where an up-front buyer remedy is required, the CMA will not issue its clearance decision unless and until the parties have entered into a legally binding agreement for the sale of the divestment business to a third party before the end of the period within which first-phase remedies must be finalised, such third party having been approved by the CMA as a suitable purchaser (that period will usually be extended to 90 working days where an up-front buyer is required). If a binding agreement for sale of the divestment business to a suitable purchaser cannot be concluded within the requisite timeframe, the CMA will proceed to open a second-phase investigation.
In principle, the CMA can require or accept remedies in respect of foreign-to-foreign mergers. In one case, a predecessor of the CMA (the Competition Commission) held that prohibition of a merger would be neither appropriate nor practicable given its global nature and because manufacturing took place overseas.
Parties may negotiate with the ICA both structural and behavioral remedies. Alike the EU Commission, the ICA has a very strong preference for structural remedies.
The guiding principle for the antitrust agencies is that a merger remedy must effectively preserve competition in the relevant market. Historically, the FTC and DOJ generally required structural remedies (i.e., divestitures) to remedy competitive concerns. The FTC and DOJ seldom utilised conduct remedies, as those require ongoing agency involvement and oversight. More recently and in limited circumstances, the FTC and DOJ have entered into consent decrees containing conduct restrictions, such as firewall provisions, non-discrimination provisions, mandatory licensing provisions, transparency provisions, anti-retaliation provisions, and prohibitions on certain contracting practices. The DOJ’s 2011 Merger Remedy Policy Guide provides a detailed discussion on structural and conduct remedies.
The FCO is not limited by law as to what remedy may be appropriate. German competition law, in general, doesn’t allow behavioural remedies in a sense of supervision of future market behaviour. The FCO is, therefore, more limited to structural remedies understood in a broad sense, which may occur as conditions (“Bedingung”) or requirements (“Auflage”). While conditions affect the validity of the clearance depending on certain events, requirements can be separately enforced by the FCO (e.g. by fining undertakings for non-compliance). A conditional clearance with a contingent condition means that the transaction may not be implemented until the conditions are met. A conditional clearance with a resolutive condition means that the clearance becomes invalid if the conditions are met.
Recently, the FCO has shifted its practice and rarely uses requirements but mainly contingent conditions. A contingent condition requiring a form of divestment is the most frequent choice. The FCO may, based on facts of the case at hand, accept a number of remedies including but not limited to licensing, provisioning of access to raw materials or facilities, installation of a trustee for divestment purposes or termination or change of certain contracts.
The JFTC states in its merger guidelines that the remedies should be considered on a case-by-case basis, but in principle should be structural (e.g., divestiture of assets) so as to maintain competition which would otherwise be harmed by the transaction. However, the JFTC also states that behavioural remedies may be appropriate or sufficient in some cases. Behavioural remedies include: (i) supply of relevant products to the competitors at production cost so that the competitors can compete with the parties; (ii) license of IP which is necessary to enter into the relevant market and compete with the parties; and (iii) measures to maintain competition between the parents of the joint venture (e.g., setting firewalls between the parents and the joint venture company).
Pursuant to the Cartel Act, the Cartel Court may not prohibit the concentration in case the concentration can be combined with commitments or restrictions which prevent the creation or strengthening of a dominant position or by means of which a justification of the concentration is realized.
If after the imposing of certain restrictions or commitments by the Cartel Court, the relevant circumstances change, the Cartel Court may alter or revoke restrictions or commitments upon application of an undertaking involved in the concentration.
In practice, commitments and restrictions are often offered in order to avoid Phase II proceedings or resolve them.
While the Austrian authorities have accepted behavioural remedies, there is a preference towards structural remedies. In comparison with the EUMR, the conclusion or imposing of remedies is more flexible in Austria, as there are no strict rules or deadlines governing them.
Both behavioural and structural remedies are possible but the Bureau has expressed a preference for structural solutions as they are easier to implement and administer. The Bureau’s openness to and acceptance of behavioural remedies is similar to the US and EU agencies. While the Bureau does not typically require an upfront buyer, it does express a preference for “fix-it-first” remedies, which have the effect of making the remedy appear more attractive and effective.
Remedy purchasers must be approved by the Commissioner and must meet certain criteria. In particular, the Commissioner will be concerned with whether the buyer (i) has the financial and operational capability to run the business effectively, (ii) is independent of the parties, and (iii) has the intention to be an effective competitor in the relevant market.
According to the FNE’s Guidelines on Remedies, remedies may be classified depending on whether they imply a divestiture or not.
Remedies that imply a divestment are of two kinds: (i) those that involve the sale of assets to a suitable buyer, and (ii) those that are intended to remove links between competitors. The first group of divestments aims to create a new competitive entity or consolidate the incumbent competitors, while the second seeks to mitigate the coordinated risks that the operation may generate.
Remedies that do not involve a divestiture comprise the wide range of remedies that imply a limitation or modification to the future behavior of the economic agents involved in the concentration. As pointed out in the FNE’s Guidelines, these remedies may be classified into five different groups: (i) quasi-structural measures intended to influence the market structure affected by the operation (such as access and licensing obligations); (ii) behavioral remedies (such as prohibitions on entering into agreements containing exclusivity clauses, arbitrary discriminations, tied sales, bundling, conditional sales, among others); (iii) obligations to limit access to information within certain business groups(“Chinese walls”); (iv) remedies that promote the regulation of market power; and (v) behavioral obligations in relation to the purchaser of the divestiture package.
There are no precedents yet under the new regime of merger control related to the remedies accepted or preferred by the FNE. However, in the Guidelines on Remedies, the FNE expressly recognizes that, notwithstanding the fact that the remedies used are highly dependent on the specific circumstances of the case and the potential competition risks, in horizontal mergers it will be required, as a general rule, a divestiture to a suitable buyer. The above does not prevent the FNE from the adoption of other complementary remedies.
According to the FNE’s Guidelines, a suitable buyer must, in general terms, be able to restore the competitive rivalry lost as a result of the concentration. In this sense, the FNE will evaluate if the purchaser proposed by the notifying parties has the expertise, experience, assets and sufficient financial resources to operate in the long term in the affected market. In addition, it must be independent from the parties, the acquisition of the assets should not create new competition issues and it should be expected the procurement from the buyer, in a timely manner, of all the regulatory permits necessary to operate in the relevant market. Moreover, the FNE may request a business plan from the potential purchaser and the obligation not to transfer the assets to third parties in a certain period.
The authority may require an up-front buyer when it seems likely that subsequent implementation will compromise the viability of the measure (for example, when there is no clarity about the existence of suitable buyers for the divested package).
In case of risks associated to vertical or conglomerate concentration operations, the FNE will be more willing to consider remedies different to the divestiture to a suitable buyer. However, even in relation to this type of operations, the FNE may prefer to carry out divestitures when they are proportional to the risks identified.
The experience under the voluntary regime indicates that the FNE’s practice in relation to remedies is influenced by, and increasingly similar to, the decisional practice and doctrine of especially the European Commission and competent US authorities.
Where remedies have been agreed in other jurisdictions, like the European Commission, that mitigate similar risks in Chile, the FNE may take a decision without the parties having to formally offer such remedies in Chile.
Before reaching its final decision and subject to the time limits provided by the Law, the CPC may, if it considers it expedient to do so, carry out negotiations, hearings or discussions with any of the interested parties or other persons. Furthermore, the CPC has wide investigative powers when assessing a concentration, including access to any premises, property, means of transport, books or records in the possession of the undertakings concerned or third parties.
In declaring a concentration compatible with the operation of competition in the market, the CPC may impose conditions or remedies in relation to the implementation of the transaction, thus having the ability to interfere with the essence of the transaction.
The CPC is required to provide written notification to the undertakings concerned of any remedies as part of its decision, which it is bound to issue within four months as of the date of receiving the notification of the concentration and payment of the filing fees. Should the merger be cross-border the CPC may liaise with the relevant foreign authority in relation to applicable remedies. Furthermore, any remedies have to be limited to those that are reasonably necessary for the protection of the competitive market.
In general, the DCCA can require the parties to take appropriate measures – structural or behavioural - in order to secure stable and efficient competition. The remedies acceptable to the DCCA include a full or partial disposal of assets, companies, subsidiaries and other proprietary interests.
Furthermore, the DCCA can request the parties to grant third party access to any supply systems, production machinery or distribution channels. As in the EU, the DCCA has a preference towards structural remedies as opposed to behavioural remedies, and in recent practice behavioural remedies are generally only used in combination with structural remedies.
The Commission has a strong preference for structural rather than behavioural remedies, in particular divestments, as it believes that the most effective way of restoring competition is either to create a new competitive entry or to strengthen existing competitors through divestments. The Commission may also accept other structural remedies, such as the severing of links with competitors or important players in a supply chain.
On the contrary, commitments relating to the future behaviour of the merged entity (“behavioral remedies”) are only accepted in exceptional circumstances. More precisely, commitments in the form of undertakings not to raise prices, to reduce product ranges or to remove brands, etc. will generally not be considered to eliminate competition concerns resulting from horizontal overlaps. However, there have been a few cases though where the Commission has accepted behavioural remedies as part of a package which also included divestments and structural commitments.
Divestments can only be made to a suitable purchaser, approved by the Commission. When assessing the suitability of the purchaser the Commission typically applies the following criteria:
- The purchaser must be independent of and unconnected to the parties
- The purchaser must possess the financial resources, proven relevant expertise and have the incentive and ability to maintain and develop the divested business as a viable and active competitive force in competition with the parties and other competitors, and
- The acquisition of the business by the proposed purchaser must neither be likely to create new competition problems nor give rise to a risk that the implementation of the commitments will be delayed. Therefore, the proposed purchaser must reasonably be expected to obtain all necessary approvals from the relevant regulatory authorities for the acquisition of the business to be divested.
These requirements may have to be supplemented on a case-by-case basis (e.g. in certain cases the Commission might require that the purchaser is industrial, rather than financial).
The Commission typically requires the sale of the divestment business to be completed within a specified time limit (usually six months from the adoption of the Commission’s clearance decision).
In case of doubts about the viability of the business to be divested, or other uncertainties as to whether suitable purchaser will be found, an “up-front buyer” may be required (i.e. a commitment by the parties that they will refrain from closing the transaction until they have signed a binding agreement for the sale of the divestment to the third party).
The Commission may also require a “fix-it-first” remedy, meaning that the parties must identify a purchaser for the divestment business, enter into a binding agreement with that purchaser and complete the sale to this purchases during the Commission’s merger control review. The Commission welcomes fix-it-first remedies in cases where the identity of the purchaser is crucial for the effectiveness of the proposed remedy.
As a general trends, it can be observed that the Commission increasingly requires “up-front buyers” and “fix-it-first” remedies.
Both behavioral and structural remedies may be submitted to the FCA and may be accepted subject they address the competition concerns identified. The FCA tends to accept behavioral commitments generally in combination with structural and/or quasi structural remedies.
For divestment remedies:
- does the authority require an up-front buyer, i.e. a requirement that the parties refrain from closing their transaction until they have signed a binding agreement for the sale of the divestment to a third party? If so, how often?
- does the authority require that third party purchasers of divestment businesses are approved by the authority as suitable? If so, what criteria does the authority apply when assessing whether a buyer is suitable?
Where competition concerns are identified, remedies in the form of structural measures, behavioural measures or a combination of both may be proposed to the NCA. Although pure behavioural remedies have been accepted by the NCA in the past, in recent years the NCA has only accepted behavioural remedies when offered in combination with structural remedies.
Despite the fact that divestment remedies are preferred by the Competition Council, behavioural remedies were also accepted in several important cases in the last years.
As regards divestment remedies, the Competition Council does not usually require, in practice, an up-front buyer (however, the general guidelines on remedies for economic concentrations provide for such possibility in certain cases). Third party purchasers of divestment businesses must be approved in advance by the Competition Council, based on the following criteria:
(i) the purchaser is required to be independent of and unconnected to the parties;
(ii) the purchaser must possess the financial resources, proven relevant expertise and have the incentive and ability to maintain and develop the divested business as a viable and active competitive force in competition with the parties and other competitors; and
(iii) the acquisition of the business by a proposed purchaser must neither be likely to create new competition problems nor give rise to a risk that the implementation of the remedies will be delayed; therefore, the proposed purchaser must reasonably be expected to obtain all necessary approvals from the relevant regulatory authorities for the acquisition of the business to be divested.
KN: The Competition Commission has in its previous practice used both structural and behavioural remedies as well as the combination of both. Generally, structural remedies are generally preferred over behavioural remedies. Also, it is customary for the Competition Commission to impose some sort of monitoring mechanism over implementation of remedies either through regular reporting obligations or appointment of trustees. There is no significant practice or specific guidelines when it comes to divestment measures, however the Competition Commission would usually not require an up-front buyer, but would rather lead a certain deadline to the parties to find a suitable buyer if possible.
Remedies including agreements as to the long-term structure of the merged entity, behavioural and divestiture undertakings are acceptable to the authority. A number of mergers have been approved subject to conditions including undertakings that the merging parties divest a part of the merged business and behavioural undertakings not to foreclose markets or refuse customers. The competition authorities have approved a number of transactions by imposing behavioural conditions on the parties. Many of these conditions have related to ancillary restrictions such as access to customers, continued supply and confidential information. The Tribunal has also ordered the Commission to investigate certain ancillary restrictions that have come to light during the course of merger hearings.
As per the Guideline on Remedies Acceptable in Mergers and Acquisitions the parties can submit behavioural or structural remedies. The Remedies Guideline 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.
Under Turkish merger control regime the structural remedies take precedence over behavioural remedies. To that end, the behavioural remedies can be considered in isolation only if (i) structural remedies are impossible to implement and (ii) behavioural remedies are beyond doubt as effective as structural remedies (Remedy Guideline, paragraph 77).
While there are few decisions (see e.g. Bekaert/Pirelli, 15-04/52-25, 22.01.2015), Migros/Anadolu Endüstri Holding, 29/420-117, 09.07.2015) where behavioural remedies were recognized, a great majority of the conditional clearance decisions rely on structural remedies (see e.g. Tesco Kipa/Migros (17-06/56-22, 09.02.2017); AFM/Mars, 12-59/1590-M, 22.11.2012; ÇimSA/Bilecik, 08-36/481-169, 02.06.2008; Mey İçki/Diageo, 11-45/1043-356, 17.08.2011; Burgaz Rakı / Mey İçki, 10-49/900-314, 08.07.2010). In some of these cases (see e.g. Cadbury/Schweppes, 07-67/836-314, 23.08.2007), the parties initially proposed purely behavioural remedies, which ultimately failed.
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, obligations to apply non-discriminatory terms, etc.
As per the Remedy Guideline, in the case of a divestiture, a monitoring trustee is appointed by the parties to control the divestment process, and such an appointment must be approved by the Authority (e.g. AFM, 12-41/1164-M, 09.08.2012).
As set out within the Remedy Guideline, the aimed effect of the divestiture will take place only and only if the divestment business is assigned to a suitable purchaser which is capable of creating an effective competitive power in the market. To make sure that the business will be divested to a suitable purchaser, the proposed remedy must include the elements that define the suitability of the purchaser in a way to cover the following requirements as well.
The decision of the Board within the framework of the commitments is also based on the presumption that a business that is viable in the market will be transferred to a suitable purchaser in a defined period of time. In terms of remedies that involve the divestiture of a business, it is the responsibility of the parties to find the suitable purchaser for the said business and to submit the said purchaser, together with an agreement to be signed with it, to the approval of the Board. Therefore, unless the parties commit that they will not carry out the transaction that is covered in the remedy with a purchaser that has not been approved by the Board; the Board shall not authorize the acquisition.
Approval of a possible purchaser by the Board is basically dependent on the following requirements:
- The purchaser must be independent of and not connected to the parties.
- The purchaser must have the financial resources, business experience, and the ability to become an effective competitor in the market through the divestment business.
- The transfer transaction to be carried out with the purchaser must not cause a new competition problem. In case such a problem exists, a new remedy proposal shall not be accepted.
- The transfer to the purchaser must not cause a risk of delay in the implementation of the commitments. Therefore, the purchaser must stand capable of obtaining all the necessary authorizations from the relevant regulatory authorities as concerns the transfer of the divestment business.
The above-mentioned conditions may be revised on a case-by-case basis depending on the particularities of the situation. For instance, in some cases an obligation may be imposed such that the purchaser is not one that seeks financial investment but that is active in the sector.
As per Remedy Guideline there are two methods that are accepted by the Board. The first method is for a purchaser fulfilling the abovementioned conditions to acquire the divestment business, within a limited period of time following the authorization decision, upon the approval of the Board. The second method is the signing of a sales contract with a suitable purchaser before the authorization decision (fix-it-first).
Determination of the method depends on uncertainties relating to the implementation of the remedy proposal and the divestiture of the business, i.e. the nature and scope of the divestment business, the risk of the business to lose its value during the transition period up to the divestiture, the risk that a suitable purchaser may not be found.
If the AMC reveals that the proposed transaction may result in the monopolisation or substantial restriction of the competition in any Ukrainian market, it may apply divestment/behavioural remedies to the concentration participants, such as:
- divestment of undertakings (assets, integral property complexes);
- prohibition to increase prices without reasonable grounds;
- prohibition to reduce the volume of production;
- prohibition to create barriers for new competitors;
- request to provide the AMC with certain data on the volume of production/supply during a specified time period, etc.
The AMC may apply the divestment remedies only in exceptional cases, if the proposed transaction may result in the monopolisation or substantial restriction of the competition in any Ukrainian market.
CADE accepts and imposes both structural and behavioral remedies. In fact, throughout the years, the antitrust authority has combined both sorts of remedies numerous times, proving this is a valuable asset to concentration control in Brazil.