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 (4th edition)
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.
Where SAMR is of the view that a case of concentration of business operators leads, or may lead, to elimination or restriction of competition, the notifying parties may propose to SAMR remedies which could lessen the negative impact of concentration on competition. The remedies to be proposed may include behavioral remedies, structural remedies or hybrid remedies that combine structural and behavioral remedies. Structural remedies include divestiture of tangible assets, intellectual property rights ("IPR") and other intangible assets, or relevant rights and interests, etc. Behavioral remedies include commitments to open access to platforms and other infrastructure of the business operators participating in the concentration, to license key technologies (including patents, proprietary technologies or other IPRs), and to terminate exclusive agreements, etc.
There is no exhaustive list of remedies accepted by the competent authority. Both structural and behavioural remedies aimed at addressing competition concerns may be accepted upon assessing their adequacy on a case by case scenario.
In general, the DCCA can require the parties to take appropriate measures – structural or behavioural - in order to secure stable and efficient competi-tion. 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 op-posed to behavioural remedies, and in recent practice behavioural remedies are generally only used in combination with structural remedies.
The DCCA recently provided a model text for Divestiture Commitments and a separate model text for Trustee Mandate. Use of the model texts is not mandatory - they are intended to serve as guidance in preparing divestiture commitments and to ensure that the parties include all the relevant data when proposing commitments.
In November 2018 the DCCA approved a merger between Tryg Forsikring A/S and the insurance company Alka with behavioural commitments. Both undertakings provide products and services in the market for property and casualty insurance for private customers. The DCCA had concerns that the merger would lead to significant restrictions to the competition on the market for private non-life insurance. In order to meet the concerns of the DCCA the following three commitments where made with a duration of five years: i) to terminate exclusivity clauses in some customer agreements, ii) to refrain from charging customers a fee when terminating their private insurance policies, iii) to annually pay 5 million Danish kroner to Forsikringsguiden (which is an independent insurance and price comparison website).
Another case where commitments were made involved a merger between Global Connect A/S and Nianet A/S from May 2018. The parties were active in the market for wholesale and retail supply of broadband connections via fibre-optic infrastructure. The DCCA found that the merger would give rise to unilateral effects in the market for provision of colocation services in the Aarhus area, resulting in higher prices. To meet the DCCA’s concern, Global Connect committed to divest two data centres in the Aarhus area owned by Nianet.
The Antitrust Law provides the resolution entity with the power to implement structural and behavioural remedies to stop an economic concentration from causing distortions at the market in question. This power is broad, and the Antitrust Law does not specifically describe the type of conditions that the SCPM could order.
With respect to structural remedies, the SCPM has ordered the sale of industrial plants, assets for product distribution, transfer of intellectual property rights, intellectual property licenses and so on. Also, regarding behavioural remedies, the SCPM has banned the implementation of exclusivity clauses and agreements with clauses conditioning the obligation of clients to acquire a minimum percentage of monthly purchases or clauses aimed at giving benefits to the concentrated economic operator to the detriment of its competitors, suppliers or clients.
The SCPM has adopted behavioural remedies more often that its US and EU counterparts.
The remedies have to make the transaction compatible with the market (i.e., remove any significant impediments to effective competition), either in the form of behavioural, structural, or quasi-structural remedies (e.g., offering access to a network or other infrastructure) or changes to existing contractual arrangements. For policy reasons, the Commission typically prefers structural or quasi-structural remedies rather than behavioural remedies, which are more difficult to monitor.
The notifying parties may propose two types of remedies:
- Structural remedies, which include the divestiture of assets or business activities, the transfer of equity holdings, the transfer of contracts, etc.
- Behavioral remedies, such as transparent and non-discriminatory access to infrastructures, the termination or amendment of an exclusivity agreement, the modification of the conditions of supply or distribution of a product, etc.
The FCA tends to favor structural remedies over behavioral remedies (such tendency is expected to increase in the near future).
The FCO is not limited by law as to what remedy may be appropriate. German competition law does, in general, not allow behavioural remedies in a sense of supervision of long-term future market behaviour. This does, however, not exclude that the FCO may use trustees for transition periods in connection with remedies offered by the parties.
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 violations). 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 or carve-out is the most frequent choice. The FCO may, based on facts of the case at hand, accept a number of other 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 changes to certain contracts.
The CCI can propose both behavioral and structural remedies where it is of the opinion that the combination has, or is likely to have, an AAEC, but can be eliminated through suitable modifications to the transaction. However, the CCI in most of the cases has preferred structural remedies. That said, in June 2019, the CCI in the combination between Larsen & Toubro Ltd. (L&T), Schneider Electric India Pvt. Ltd. and MacRitchie Investments Pte. Ltd. (L&T – Schneider decision) issued a decision involving purely behavioral remedies. Prior this decision, the CCI has passed behavioral remedies only in a combination with divestments. In PVR Limited’s (PVR) acquisition of DLF Utilities Ltd. (DUL), even though PVR offered behavioral commitments, the CCI imposed structural as well as behavioral commitments on PVR, including: (i) commitments not to expand PVR’s presence in the concerned relevant markets; (ii) commitment not to enter into co-operation arrangement with DUL; and (iii) commitment to reduce the non-compete period covering only the concerned relevant markets. In ChinaChem’s acquisition of Syngenta AG, the CCI accepted a hold separate obligation offered by the parties with respect to their entities in India along with divestment of certain products.
The CCPC has not published any formal guidelines on its approach to remedies. However, its practice to date has indicated a preference for structural (divestiture) remedies over behavioural remedies in merger cases. This is consistent with the approach taken by the European Commission and other international merger control agencies. Recent cases that were cleared on acceptance of divestment commitments include Kantar Media/Newsaccess and BWG/4 Aces.
In determining the scope of divestitures, the CCPC approach follows closely that of the European Commission, in seeking to ensure that the divested business constitutes a viable standalone business that, if acquired by an appropriate purchaser, would have both the means and incentive to compete with the merged parties on a long-term basis (for example, Premier Foods/RHM). The CCPC has not laid down any specific criteria by which it would assess a suitable purchaser, although the purchaser would need to demonstrate that it had the resources and capability of running the divestment business on a long-term basis. Similarly, while the CCPC has not adopted any general policy in relation to upfront buyers, it has previously required parties to suspend closing a transaction until an agreement with an approved purchaser for the divestment business was in place (for example, Communicorp/SRH).
The CCPC has, however, recently shown an increasing willingness to accept behavioural remedies, such as confidentiality and merger notification commitments (for example, Dalata/Clarion Liffey Valley/Clayton Cardiff Lane) and a commitment to develop a particular supply business (for example, Applegreen/JFT). In Sean Loughnane/Crinkle Fine Foods, the CCPC identified a potential anti-competitive clause in an asset purchase agreement (a purchaser non-compete provision) and dealt with this by accepting a binding commitment from the parties to vary the agreement to remove the clause and not to put in effect any arrangements that would have the same or similar effect. More recently, in Uniphar/Sisk Healthcare and Trinity Mirror/Northern & Shell, the CCPC accepted firewall and confidentiality commitments to address its concerns about potential access to commercially sensitive information. Most recently, in July 2019, the CCPC in LN-Gaiety/MCD accepted a wide range of behavioural commitments including a requirement that LN-GAIETY voluntarily notify the CCPC of any below-threshold acquisitions of music festival businesses in Ireland for a period of five years, implement information barriers between it and the acquired business, and abide by non-discrimination obligations vis-à-vis other venues.
In 2011, the Commissioner issued Opinion 2/11 Guidelines on Remedies to Mergers, which Raise Reasonable Concern of Significant Harm to Competition (the "Remedies Guidelines"). According to the Remedies Guidelines, the Israeli Competition Authority prefers structural remedies which secure permanent change to the market. Structural remedies require less follow-up and enforcement compared to behavioural remedies, which control the conduct of the merged firm. According to the Remedies Guidelines, the Israeli Competition Authority may stipulate behavioural conditions as a temporary solution when:
- The competitive concerns involve a specific, well-defined behaviour which is easy to detect;
- A failing company will exit the market entirely without the merger; or
- Structural conditions are irrelevant.
In practice, there have been cases where the Israeli Competition Authority accepted certain behavioural remedies, including semi-structural remedies such as Chinese walls and personal separation between certain activities of the merged companies.
The KFTC may impose various remedies including (Article 16(1) of the MRFTA):
- prohibition of the transaction;
- disposition of all or part of the shares acquired;
- resignation of an officer;
- transfer of business; and
- restrictions on the business method or business scope of the merging parties.
According to the KFTC’s “Guidelines for M&A Remedies,” the KFTC does in principle, impose structural measures against anticompetitive mergers. In the event that a remedy is imposed, the remedy must be structural, and behavioural remedies can only be imposed with the structural remedies to supplement the implementation of the structural remedies. However, if structural remedies are impossible or ineffective, only imposing behavioural remedies is permitted.
Behavioral and structural remedies are acceptable. Parties are allowed to propose remedies they consider appropriate such as specific acts, divestitures, amending the terms of the transaction, activities to foster competition, among others. Despite parties being allowed to propose the remedies they consider appropriate, the authority has the final word.
Structural remedies and "fix it first" solutions are the most common, although behavioral remedies have been accepted in numerous cases. There is, however, a general tendency and development in the NCA's practice of preferring structural and "fix it first" remedies over behavioral remedies, although behavioral remedies are still accepted in individual cases.
The PCA provides the PCC can impose a broad range of punitive and remedial administrative sanctions that it may impose, such as but not limited to behavioral remedies, injunction, fines, divestiture, and disgorgement of profits.
In the PCC’s recent clearance decision, In re: Acquisition by Grab Holdings, Inc. and MyTaxi.PH Inc., of Assets of Uber B.V. and Uber Systems, Inc., Commission Decision No. 26-M-12/2018, PCC Case No. M-2018-001, 10 August 2018, the PCC authorized the takeover of Uber’s operations in the Philippines by its competitors. The approval was conditioned on behavioral undertakings by Grab Holdings, Inc. (“Grab”) and MyTaxi.PH Inc. to increase efficiencies in service which included, among others, undertaking of non-exclusivity commitments, implementation of service quality metrics, an imposition of a range of allowable rates, and regular compliance monitoring by the PCC.
Both behavioral and structural remedies are acceptable. The PCA mentions in its guidelines on remedies that it prefers structural over behavioral remedies, and its more recent decisional practice shows that the latter are becoming less frequent - even in vertical concentrations (where structural remedies may be less available) the PCA is becoming more and more reluctant to accept behavioral remedies (although there is an historic number of cases where behavioral remedies were imposed).
Generally, where structural remedies are applied, these are simultaneously complemented by behavioral remedies in the same case.
For structural remedies, the PCA considers, in particular, three possibilities for transferring an activity to a suitable purchaser: sale of the divested business within a fixed time-limit after the decision; an up-front buyer; and fix-it-first remedies. Under all these circumstances, the purchaser must be approved by the PCA.
The up-front buyer solution, according to the PCA’s guidelines on remedies, might be adequate in cases where there are considerable risks related to the choice of purchaser or related to the asset to be transferred, e.g. due to third parties’ rights or uncertainties with respect to the possibility of finding a suitable purchaser. As an example, this solution was adopted in Powervia (Fundo Explorer II) / Laso*Auto-Laso*Probilog*Laso Ab (case Ccent. 16/2011, of 12.01.2012).
Additionally, and in any case, the third party purchaser of the divested business must be approved by the PCA. The applicable standard purchaser requirements are very much in line with those established by the Commission, in brief:
- Independent: the purchaser must be independent from the parties, and must not have links with the parties. This requirement will also be assessed according to the features and practices of the industry and market at stake;
- Capacity and incentive: the purchaser must hold the necessary technical and financial capacities, experience and economic incentive, to maintain and develop the divested business. For this assessment it might be relevant to confirm whether the purchaser holds the necessary licenses or other specific assets;
- Absence of competition law concerns: from the assessment, it must not be expected that the acquisition by the purchaser may create competition law concerns.
There are two options that allow clearance to be obtained if FAS regards the transaction as perilous for competition.
In the first scenario, FAS may delay clearance and request the parties to perform certain actions in order to decrease the negative effect on competition.
In the second scenario, FAS approves the transaction under certain conditions, i.e. with the obligation for the parties to perform certain actions, regularly provide FAS with certain information, prohibition on the sale or purchase of certain assets.
The SCA accepts both structural and behavioural remedies, however, there have only been two decisions concerning remedies during the last ten year period. Both decisions have concerned structural remedies. Compliance with remedies may be enforced under penalty of a fine.
The ComCo may allow mergers under conditions and obligations to be implemented either before or after the merger.
Conditions and obligations in the form of structural remedies may concern the sale of participations, companies, operations or rights, market openings as well as the unbundling of personnel, financial or contractual relationships.
Behavioural remedies which oblige companies to a certain market behaviour in the future are usually to be ordered subsidiary to structural measures as long as they appear appropriate in specific indi-vidual cases.
Neither Law N° 26786 nor the Bill state what remedies or kind of remedies are acceptable to authorize the merger or acquisition.
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.; 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.
For example, in February 2018, the Board concluded its Phase II review regarding the transaction concerning the acquisition of Ulusoy Deniz Taşımacılığı A.Ş, Ulusoy Gemi İşletmeleri A.Ş., Ulusoy Ro-Ro İşletmeleri A.Ş., Ulusoy Ro-Ro Yatırımları A.Ş., Ulusoy Gemi Acenteliği A.Ş., Ulusoy Lojistik Taşımacılık ve Konteyner Hizmetleri A.Ş. and Ulusoy Çeşme Liman İşletmesi A.Ş. (‘Ulusoy Ro-Ro’) by U.N. Ro-Ro İşletmeleri A.Ş. (‘U.N. Ro-Ro’). The Phase II review initiated in March, 2017 lasted approximately 7 months and several behavioral commitments have been proposed to eliminate the competition concerns that may arise in the relevant market. That said, as a result of Phase II review, the Board decided not to approve the transaction and held that that the transaction will strengthen U.N. Ro-Ro’s dominant position in the market for Ro-Ro transport between Turkey and Europe and U.N. Ro-Ro will be dominant in the market for port management concerning Ro-Ro ships and therefore the competition in these markets will decrease significantly.
Furthermore, the transaction concerning the merger of Luxottica Group S.p.A. and Essilor International S.A. (Luxottica/Essilor, 1 October 2018, 18-36/585-286) was also concluded in 2018. There were competitive concerns with respect to the conglomerate effects that could arise from the integrated portfolio that the combined entity, in addition to the horizontal overlap within the markets for “the wholesale of branded sunglasses” and “the wholesale of branded optical frames”. Thus, the Authority initiated a Phase II review on 1 October 2017. Some structural and behavioural remedies were proposed to the Turkish Competition Authority in order to address the horizontal and conglomerate effects of the transaction which included the divestiture of Merve Optik Sanayi ve Ticaret A.Ş. ('Merve Optik'), which is an affiliate of Essilor that distributes several brands of both sunglasses and optical frames. The Board conditionally approved the transaction on 1 October 2018.
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.
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.
The parties can negotiate remedies regarding possible competition concerns. There is a wide range of such measures, however it shall be noted that the remedies are to be tested additionally for the compliance with the concerned actions prohibition.
There are three general types of remedies that can be identified: removal of links with competitors, divestment, and other remedies (access remedies and behavioral remedies). General rule for remedies assessment is whether the remedy is suitable for eliminating a competition concern or not.
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 utilised conduct remedies (such as firewall provisions, non-discrimination provisions, mandatory licensing provisions, transparency provisions, anti-retaliation provisions, and prohibitions on certain contracting practices) in limited circumstances, because conduct remedies require ongoing agency involvement and oversight. In September 2018, the DOJ announced the withdrawal of the 2011 DOJ Policy Guide to Merger Remedies, and instructed parties that the 2004 DOJ Policy Guide to Merger Remedies will be in effect until the DOJ releases an updated policy. This change reaffirms the general approach of the FTC and DOJ to require structural remedies (i.e., divestitures) to remedy competitive concerns.
Parties may negotiate with the ICA both structural and behavioral remedies. Similarly to the EU Commission, in past cases, the ICA has showed strong preference for structural remedies (see however case C12207 - SKY ITALIA/R2 (decision of May 20, 2019), in Section 34 below, for a recent case of behavioral remedies imposed by the ICA.
In case the HCC raises doubts as to the compatibility of a notified concentration with the Merger Control Legislation, the undertakings concerned might need to propose the amendment of the notified concentration by undertaking commitments, either behavioral or structural or both, in order to alleviate the HCC concerns regarding the effects of the concentration on competition in the relevant market. The abovementioned remedies must be submitted to the HCC within twenty (20) days from the commencement of Phase II proceedings.
HCC’s Decision 524/VI/2011 determines the required content of the notification form on proposed remedies. Overall, the HCC follows the EU decisional practice and ECJ’s case law, accepting that commitments should be efficient, adequate and proportionate in order to ensure effective competition in the relevant market. In general, it is considered that structural commitments are preferable, since they are deemed to avert the competition concerns over the longer term. Nonetheless, the HCC has been reluctant to subject the approval of a concentration on only structural measures. In 2013, the HCC approved the concentration between two Greek systemic banks subject to specific structural and behavioural remedies, although the transaction was later aborted. In particular, the parties undertook the commitment to divest a subsidiary. Moreover, the parties committed to abstain from card acquiring processing and apply Chinese Walls in order to avoid the diffusion of confidential information (562/VII/2013).
In 2017, the HCC imposed both structural and behavioral measures when granting clearance to the acquisition by Sklavenitis of sole control over the Marinopoulos supermarket chain. With respect to the structural measures, the acquiring company undertook to divest twenty-two (22) supermarket stores in the prefectures where there was a horizontal overlap and relatively high market shares of the combined entity at the level of relevant local markets within nine months (HCC 637/2017). Likewise, in 2018, the HCC cleared the acquisition of Hellenic Seaways by Attica Group subject to both behavioural and structural commitments for the maintenance of effective competition in the Greek Domestic Ferry sector. As per the commitments undertaken, the Company is bound not to increase ticket prices in certain itineraries, to proceed with the divestiture of certain boats, add routes to certain island connections, and will facilitate the entry of competitors onto relevant markets. The latter decision has not been published yet.
In addition, in 2014 the HCC when assessing a merger between two major milk companies, Delta Foods S.A./ Mevgal S.A (598/2014) ruled that the acquiring party should divest a leading trademark of chocolate milk of the acquired party, with a view to restoring competition and preventing the creation of entry barriers that inhibit competitors from entering the chocolate milk market. Moreover, to ensure the sustainability of the divested asset, the acquiring party undertook the commitment, to give the buyer access to its distribution network for chocolate milk and to have the new entity enter into a toll manufacturing agreement to produce chocolate milk for the buyer at market prices, for a transitional period of two years following completion of the divestiture.
On the contrary, behavioral commitments have been accepted by the HCC in several cases. Recently, the HCC approved the notified merger between Mytilineos S.A and EPALME S.A., subject to behavioral commitments to the parties concerned, such as the condition providing that Mytileneos' supply of primary aluminum production is not subject to the supply of pure aluminum waste recycling services by EPALME(in HCC 682/2019). Moreover, in its Decision 650/2017 the HCC approved the notified merger between Delta Foods S.A. and Mevgal S.A., while imposing several behavioral commitments, such as confidentiality obligations and the condition that the two companies will purchase raw cow’s milk from producers in twelve prefectures at prices that would be no lower than a minimum guaranteed price.
Further, in its Decision 575/2013, the HCC approved the merger between Linnaeus Capital Partners B.V., Dias S.A. and Selonda, subject to the adoption of certain behavioural measures. Specifically, Linnaeus Capital Partners B.V. and the companies directly or indirectly controlled by it have undertaken the following commitments: (A) To suspend the exercise of the voting rights of Linnaeus Capital Partners B.V. or the companies directly or indirectly controlled by it , for a period of 2 years from the date of completion of the merger, regarding the election of the Board of Directors of Nireus Fisheries SA., a company in which Linnaeus holds shares (B) Not to increase (directly or indirectly) their participation in the share capital of Nireus Fisheries SA and (C) To refrain from exercising, in their capacity of a shareholder of Nireus Fisheries SA, a minority interest in requesting the provision of sensitive commercial information, in particular for customers, sales, production, prices.