COSTA RICA Law and Practice Contributed by: Claudio Donato Monge, Marco Lopez, Claudio A Donato Lopez and Carolina Retana, Zurcher, Odio & Raven
5.2 Parties’ Ability to Negotiate Remedies After the second phase of the process, if Coprocom considers that the transaction causes an anti-compet - itive effect, it will grant a hearing to the parties where they may propose measures to mitigate such effects. There are no specific listed measures: the parties may propose any measure that they deem appropriate to mitigate such effects. Coprocom may also suggest remedies. Remedies that have been used include: • the divestment of undertakings or the sale of assets (this is the most common remedy offered by the parties); • restrictions or limitations related to the sale of ser - vices or goods; • the obligation to supply certain goods or services to specific customers or competitors; and • the introduction of specific clauses in agreements signed with clients or suppliers. Remedies Where Coprocom concludes that a transaction may generate competition concerns, the authority may discuss remedies with the notifying parties in order to mitigate the identified effects. Both structural and behavioural remedies may be considered, depending on the characteristics of the relevant market and the nature of the concerns identified during the review. 5.3 Legal Standard There are no legal standards that the remedies must meet; their suitability will depend on the assessment made by Coprocom on a case-by-case basis. There is no exhaustive list of possible remedies that may be implemented by the parties. As such, the parties have a wide range of possibilities regarding the remedies that they may offer. 5.4 Negotiating Remedies With Authorities Generally, the parties may initiate the negotiation of remedies after the second phase of the process has been concluded and once the Competition Commis - sion determines the potential anti-competitive effects of the transaction.
However, if the initial notification identifies potential anti-competitive effects and the parties understand that the transaction will require remedies, they may approach the Competition Commission and aim to start finding an acceptable solution. The Competition Commission has an open door policy where it encour - ages this type of discussion, and there is no specific stage that needs to be reached before such discus - sions can start. 5.5 Conditions and Timing for Divestitures There is no standard approach regarding conditions and remedies: the conditions and specific implemen - tation of the remedies shall be determined by the Competition Commission on a case-by-case basis. The Competition Commission may enable the parties to complete the transaction and implement the rem - edies afterwards, just as it may order the implementa - tion prior to closing the transaction. Penalties for failure to comply with the remedies range from 0.1% to 10% of the revenues of the agents involved. In addition, the Competition Commission may eventually order divestments or impose meas - ures to ensure that the object or purpose that aims to be achieved through the measures is satisfied. 5.6 Issuance of Decisions A formal decision is issued at the end of the first phase, and the second phase, where applicable. This deci - sion contains all the information regarding the analysis of the transaction, the relevant markets, the effects on such markets, etc. The decision that is notified to the parties generally contains sensitive information such as the parties’ sales, since they must be duly moti - vated to comply with administrative law dispositions. Coprocom generally publishes a non-confidential and shorter resolution, which is publicly available. This resolution tends to be much less detailed and does not reveal any sensitive information from the parties. As mentioned above, any sensitive information will not usually be revealed, but should the parties have any concerns about specific information, they may request that Coprocom keep such information con - fidential.
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