COSTA RICA Law and Practice Contributed by: Claudio Donato Monge, Marco Lopez, Claudio A Donato Lopez and Carolina Retana, Zurcher, Odio & Raven
3.10 Accelerated Procedure The ASCA introduced a two-phase process. It is basi - cally the same procedure, but the Commission may approve the transaction in 30 days or less in non-com - plex cases where it is clear that there is no potential harm to competition. Costa Rica does not have a special fast-track proce - dure, since any complex or simple transaction initiates the notification process in the same manner. However, if the transaction is simple and there are no implica - tions for the market, there will be only one phase in the process. This results in an expedited process for clearance. The substantive test for clearance consists of an analysis of the anti-competitive and pro-competitive effects of the transaction. If the transaction clearly does not generate anti-competitive effects, or if the pro-competitive effects offset those anti-competitive effects, the Competition Commission will authorise the concentration in the first phase of the process. However, if the Competition Commission identifies any concerns regarding potential anti-competitive effects, it shall notify this to the parties and give the parties the opportunity to dispute this. In order to do so, the parties may object to the Com - petition Commission’s position; they may also state the efficiencies or pro-competitive effects that may potentially derive from the concentration, and offset such anti-competitive effects. The Competition Com - mission may also impose additional conditions in order to mitigate the anti-competitive effects. 4. Substance of the Review 4.1 Substantive Test At the end of the second phase, if the Competition Commission considers that there are anti-competitive effects associated with the transaction that pose a significant concern, it shall give the parties the oppor - tunity to propose measures to mitigate those effects.
ceives a risk of anti-competitive effects, and at this point phase II should start. Phase II Phase II allows the Competition Commission to assess the potential anti-competitive effects in more detail, and the potential efficiencies that may be generat - ed to determine if they offset those anti-competitive effects. The parties may offer and discuss potential remedies with the Competition Commission. Phase II begins with an additional RFI issued by the Competi - tion Commission and it may extend up to 90 additional calendar days, from the moment the parties fulfil that RFI. After these phases have been completed, the Compe - tition Commission shall determine whether it author- ises the transaction, or it will indicate its concerns to the parties and grant them the opportunity to provide conditions that may mitigate these effects. Should there be a need to file possible remedies, the parties may enter into discussions with the Competi - tion Commission, as discussed in 5. Decision: Prohi- bitions and Remedies , and particularly 5.4 Negotiat- ing Remedies With Authorities . 3.8 Pre-Notification Discussions With Authorities Parties can engage in pre-notification discussions with the Competition Commission. This has become common, especially when a transaction falls in a grey area where it is not completely clear whether or not it may be classified as a notifiable concentration. Such process would be treated confidentially. 3.9 Requests for Information During the Review Process RFIs are very common during the review process. RFIs are issued by the Competition Commission at the initial review process, and are generally related to the parties’ local activities, where the Competition Commission tends to seek more information about the market, its participants, the parties’ sales, clients and consumers, etc. RFIs have a suspensory effect on the review period term.
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