COSTA RICA Law and Practice Contributed by: Claudio Donato Monge, Marco Lopez, Claudio A Donato Lopez and Carolina Retana, Zurcher, Odio & Raven
5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions It is not common for Coprocom to require remedies in foreign-to-foreign mergers. In complex concentra - tions, foreign authorities will usually impose remedies that also have repercussions in Costa Rica. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications There is no legal framework that establishes how ancillary restraints should be covered; they would be determined by Coprocom on a case-by-case basis. There are precedents where Coprocom’s resolutions have covered ancillary restraints without the need to file a separate notification. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights The merger review process involves the Competition Commission publishing a notice with general non- sensitive information regarding the transaction. The purpose of this publication is to allow interested third parties to appear before the Competition Commis - sion and submit observations regarding the proposed concentration. Third parties may submit arguments, supporting evi - dence and observations concerning the potential effects of the transaction, including reasons why the concentration should be authorised or opposed. In addition, the Competition Commission may request information directly from market participants, includ - ing competitors, distributors, suppliers, customers and consumer organisations, typically through ques - tionnaires or RFIs issued during the review process. 7.2 Contacting Third Parties The Competition Commission typically contacts third parties as part of its review process. Generally, the entities approached by the Competition Commission
are providers, main customers, distributors and com - petitors. Usually, the most significant entities in the market are approached. These contacts are generally made through broad questionnaires. The Competition Commission may also “market test” the remedies offered by the parties. In such cases, the Authority would lean towards testing such remedies with the third parties that oppose the transaction. 7.3 Confidentiality The notification of the transaction is made public since the Competition Commission issues a public notice involving general information. Commercially sensitive information submitted during the review process is treated as confidential and maintained in a separate confidential case file, which is accessible only to the Competition Commission and the notifying parties. In conclusion, the Competition Commission creates two case files: • one confidential case file, which may only be accessed by the Authority and the notifying parties; and • another non-confidential case file, which is acces - sible to the public. 7.4 Co-Operation With Other Jurisdictions There are internal agreements between authorities to exchange information and also to seek advice relat - ed to similar cases that other authorities may have reviewed. However, such co-operation is rarely dis - closed. 8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review The ruling is subject to an administrative appeal before the Competition Commission, and is then subject to judicial review. There have been no recent judicial reviews on rulings related to merger control proceed - ings, largely due to the fact that the transaction rejec - tion rate is very low. However, there have been appeals against other sanc - tions imposed by Coprocom. Some of those prec -
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