GUATEMALA Law and Practice Contributed by: Claudia Pereira, Carlos Ortega and Juan Pablo Gramajo, Mayora & Mayora, S.C
5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The Competition Act empowers the Superintend - ence to request the total or partial separation of an irregular concentration, through termination of control as defined in the Act. The Superin - tendence cannot order this independently but must request an order from a civil court. 5.2 Parties’ Ability to Negotiate Remedies The Act does not expressly state that par - ties may negotiate remedies. However, it does state that remedies (conditions) may either be accepted or imposed by the Superintendence, in language that mirrors the Mexican law, where parties are expressly allowed to propose or sug - gest remedies when concentrations are under examination. Therefore, it may be understood that the parties may submit proposed remedies; the details of which could be developed in the forthcoming Regulation to the Act. The remedies (conditions) foreseen by the Act, that the Superintendence may accept or impose, include: • carrying out or abstaining from certain behav - iours; • divesting certain assets, rights, participations or shares onto third parties; • changing or eliminating terms or conditions in acts or agreements; • carrying out actions aimed at fostering par - ticipation of competitors in the market, or at granting access, goods or services to com - petitors; and • any other conditions whose purpose is to prevent the concentration from obstructing,
diminishing, damaging or preventing free competition. The provision containing this list follows, almost verbatim, the Mexican law. 5.3 Legal Standard The Act states that the Superintendence may only accept or impose conditions that: • are directly related to correcting the anti-com - petitive effects of a concentration; and • are proportional to the correction sought. Therefore, conditions could not be required to address non-competition issues or concerns. 5.4 Negotiating Remedies With Authorities The Superintendence may impose remedies not agreed by the parties. The procedural steps with respect to remedies are not addressed in the Competition Act. They may be contained in the Concentrations approved conditionally (ie, with remedies) become classified as irregular when the conditions are not fulfilled within the term established in the conditional authorisation. Therefore, they become subject to the same penalties applicable to any irregular concentra - tion, including the limitation, previously explained in 2.13 Penalties for the Implementation of a Transaction Before Clearance , that the Act cur - rently does not state what these penalties are. 5.6 Issuance of Decisions The Competition Act provides that a formal deci - sion must be issued, either authorising, deny - ing or conditioning the concentration. However, forthcoming Regulation to the Act. 5.5 Conditions and Timing for Divestitures
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