Contributed By Zurcher, Odio & Raven
The most relevant merger control bodies of law are the Promotion of Competition and Consumer Protection Act (the “Competition Act”), and the Act to Strengthen Competition Authorities (ASCA), which entered into force in 2019, and presented a significant amendment to the legislation. The Regulations to the Promotion of Competition and Consumer Protection Act are another relevant body of law. Finally the Regulations to the Act to Strengthen Competition Authorities are expected to enter into force in the second half of 2020.
The Commission for the Promotion of Competition (Coprocom) published the "Guidelines to Analyze Economic Concentration", which also contain relevant dispositions and information regarding the merger notification process.
It must be noted that in 2019 Costa Rica went through a major reform of its competition law framework. As such, there are regulations which are expected to enter into force in the next months. Also, there are not many precedents yet issued by the Commission regarding the application of the recently enacted laws. The next months are key towards understanding the interpretation that the Commission will provide to the new law and how some of its concepts need to be understood.
Telecommunications is the only sector which has a special legislation pertaining merger notifications. The Superintendency of Telecommunications is the authority that enforces competition law in the telecommunications market.
There are certain sectors on which the Competition Commission may co-ordinate some issues or topics with the corresponding superintendencies (eg, financial, securities, pensions, etc). However these sectors are all overseen by the Competition Commission.
The Commission for the Promotion of Competition (Coprocom) is the authority that enforces the relevant legislation. However, in the telecommunications sector, the Telecommunications Superintendency is the entity that enforces competition law.
Notification is compulsory and there are no exceptions to it. If the transaction can be classified as a concentration under the definition provided by the law and, if the thresholds established by the law are triggered, the parties are obliged to notify.
In Costa Rica, there are different penalties for failing to notify.
These penalties are established in Article 114 of the ASCA:
In the past, failure to notify was sanctioned with a fixed sum penalty that did not take into account the company's revenue. However, as part of the recent legal reform, the penalties were modified and the current ones are much more severe. This reform was introduced specifically to discourage companies from running the risk of not notifying.
The definition of economic concentration contained in the Competition Act is broad and covers a whole series of business modalities, such as mergers, transfer of shares, purchase of assets, and purchase and sale of a business establishment, among others. Hence, a concentration that must be notified for purposes of the Competition Act and its regulations would be any act or contract that contains at least the following elements:
Internal restructurations of companies that belong to the same group of economic interest are not caught. The main reason behind this is that there is no change of control, since the final beneficiaries of the involved parties are the same, prior to and after the transaction has been executed.
Control is defined as the de facto or legal possibility of executing a decisive influence over an economic agent or its assets, and understood as the power to adopt or block decisions that determine its strategic commercial behaviour. As such, acquisitions of minority interests that include the right to veto strategic decisions could trigger the obligation to notify.
Once that a transaction is determined to be classified as a concentration according to the law, the parties must analyze whether or not the jurisdictional thresholds are met. There are two thresholds that need to be met by the parties:
Transactions that fall below this threshold are not subject to notification.
The individual threshold is also part of the modifications that were introduced by the recent legal reform. This individual threshold poses a significant importance since it eliminates the obligation to notify when a large company that met the joint threshold by itself entered into a concentration with a very small company, that had an almost irrelevant position in the market. Prior to the reform this type of transactions required to be notified, but not anymore.
The jurisdictional thresholds can be met either by the parties' assets in Costa Rica or by the parties' revenues in Costa Rica. It is important to note that the only assets or revenues taken into consideration are those that are located in Costa Rica or which are generated in, or from sales to, Costa Rica. As such, multinational companies which have a minimum insignificant participation in Costa Rica, do not necessarily meet the individual jurisdictional threshold.
The sales or assets value booked in a foreign currency should be converted according to the official exchange rate of the Costa Rican Central Bank. In the asset based threshold, the asset value to be considered is the fair market value of such assets.
Generally, the seller's turnover is not taken into consideration with the turnover of the target. However, we advise on analysing this on a case by case basis.
The group wide definition generally apply to calculate the thresholds for the buyer. In case that there have been acquisitions or divestments which are not reflected in the most recent financial statements, there should be some observations made in the filing. The Commission revises in detail the company's financial statements, and almost certainly there will be questions made in the request for information (RFI) regarding this issue, if it is not explained beforehand by the parties. However, this should be analysed individually for each specific case.
Foreign to foreign transactions are subject to merger control. As long as the entities have executed activities with an incidence in Costa Rica in any of the previous two years, then the transaction should be notified if the other jurisdictional thresholds are met. A filing cannot be required when a target has no sales (direct or indirect) and or assets in the jurisdiction, since it will not have an incidence in Costa Rica, which is one of the requirements to trigger the obligation to notify.
There is no market share threshold. The Commission does take into consideration the market shares of the parties when analysing the specific effects of the transaction. However, market share is not a threshold to take into consideration whether or not the obligation to notify is triggered. There may be companies that meet the threshold on very large and fragmented markets, so that their corresponding market shares are irrelevant; but still, they would be obliged to notify.
Joint ventures that meet the definition of concentration provided by the law are subject to merger control. Again, the main issue is whether or not there is come change of control. So if that joint venture results in the adoption of certain commercial measures that may impact the decision making processes of the companies the Joint Venture can be subject to notification. There are no special rules pertaining the application of the thresholds to joint ventures.
Finally, Joint Ventures between competitors should also be analysed to determine whether or not they may represent a prohibited horizontal agreement according to the law.
Coprocom has the powers to reject the transaction or to divest or order the reversal of a transaction which was not notified. Also, Coprocom may impose hefty fines over the parties.
As part of the powers that the authority has within the investigation, such powers are also extensive. Should the Competition Commission have substantiated indication that there was a concentration which was not notified, then it may start an investigation. In such investigation Coprocom may request any information and contracts associated with the transaction as well as any additional information. With the prior authorisation issued by a Judge, Coprocom may also execute raids in the involved parties' premises.
The statute of limitations to sanction a concentration which was not notified is four years.
The reform to the law introduced a suspensive effect over the merger notification. As such, the transaction cannot be implemented until clearance.
However, the parties may request a waiver of the suspensive effects of the notification. In order to do so, they must file a specific application where they demonstrate the reasons or motives that justify such waiver.
Since the introduction of a suspensive effect is a recent change in the law, there have not been any penalties imposed for implementing a transaction before clearance. It must be noted that the suspensive effect was introduced in 2019, and as such, there are no precedents yet. However, it is likely that in the next months there will be precedents by the Commission regarding this topic.
There are no specific exceptions to the suspensive effect. However the ASCA states that the Commission under qualified circumstances may waive the suspensive effect. There are no precedents yet regarding such waiver.
The acquisition of a failing firm could be used as a justification to request the derogation from the suspensive effect, if the parties can demonstrate that waiting for clearance prior to implementing the transaction, can result in the failing firm deteriorating its position to a point where the transaction would not be closed.
Under qualified circumstances which the party will need to discuss with Coprocom, the parties may be authorised to close and implement the transaction prior to clearance.
There are no specific deadlines other than the obligation to notify the concentration prior to its closing. Other deadlines may arise during the process. For example, the deadline to provide the information requested in Coprocom's RFI, or the deadline to provide conditions. The terms of these deadlines are set forth in the law, but they will always be expressly stated by the Commission in its resolutions for each particular case.
Penalties are imposed for failing of notification and such penalties are not divulged, but the Commission's resolutions are public so they can be accessed. The Commission does generally communicate the penalties that it has imposed without revealing the identity of the sanctioned parties.
A binding agreement is not required for the notification. The notification may be filed with a less formal agreement such as a letter of intent or a memorandum of understanding. The filing can also be made even without a written agreement, as long as the terms disclosed are not varied considerably once the formal agreement is drafted and signed.
There are no applicable filing fees.
All of the involved parties are responsible for filing. The filing made by one party would fulfil the filing obligations of the rest of the parties.
The parties need to submit at least the following information regarding the transaction:
If the notification is deemed to be incomplete, Coprocom shall notify this to the applicant and will provide a ten business day term for the parties to provide the information. This term may be extended.
Should the parties not provide the required information, then the Commission will reject the concentration.
There are penalties that range from 0.1% to 10% of the sanctioned company's sales. These sanctions are determined based on the severity of the illegal conduct. These sanctions are applied in practice and there are recent precedents related to this.
However, the precedents regarding sanctions are all based on the previous legislation which contemplated fines which were set according fixed sums (base salaries). These fines did not take into consideration the sales of the company. Therefore, there is currently no criteria as to how the Commission will determine what percentage of the sales will be applied to each fine.
The different phases of the process are the following:
After this, Coprocom shall determine whether it authorises 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 Coprocom about this as will be stated later in this article.
Parties can engage in pre-notification discussions with Coprocom. This is something that has been done in the past and has been more common especially when transactions fall in a gray area where it is not completely clear whether or not it may be classified as a concentration. Such process would be treated confidentially.
RFIs are very common during the review process. RFIs are issued by the Authority at the initial review process. Generally, such RFIs are related to the company's activities in the country, where Coprocom tends to seek more information about the market, its participants, the company`s sales, clients and consumers, etc.
RFIs do suspend the review term. So as long as the information has not been provided completely, the clock stops running.
The ASCA introduced a two phase process. It is basically the same procedure, but in non complex cases where it is clear that there is no potential harm to competition, the Commission may approve the transaction in 30 days or less.
Costa Rica does not have a special fast track procedure, since any complex or simple transaction initiates the notification process in the same manner. However, if the transaction is simple and there are no implications for the market, then there will be only one phase in the process. This results in a much more expedite process to obtain clearance.
The substantive test for clearance consists of an analysis of the anticompetitive effects and the procompetitive effects of the transaction. If the transaction clearly does not generate anticompetitive effects, then Coprocom will authorise the concentration in the first phase of the process. However, if Coprocom identifies any concerns regarding potential anticompetitive effects, it shall notify this to the Parties and provide the parties the opportunity to dispute this.
In order to do so, the Parties may object Coprocom's position, and it may also state the efficiencies or procompetitive effects that derive from the concentration and offset such anticompetitive effects.
In case that, at the end of the second phase, Coprocom considers that there are anticompetitive effects associated to the transaction which pose a significant concern, it shall grant the parties the opportunity of proposing measures that mitigate those effects.
Generally the markets which will be analysed with more depth are the ones where there is overlap between the Target and the Buyer. The market shares, have an impact on whether or not the Competition considers that there is potential for anticompetitive effects. However, low market shares do not waive the requirement to analyse the market.
In transactions where the parties have lower market shares, it is much more likely that Coprocom will follow a one-phase process and authorise the transaction more expeditiously.
Authorities frequently rely on case law from other jurisdictions, mainly the United States of America and the European Union. However, other jurisdictions such as Colombia and Mexico are also used as reference.
There is no taxative list of competition concerns that Coprocom needs to analyse. As such, unilateral effects, co-ordinated effects, conglomerate or portfolio effects, vertical concerns and elimination of potential competition
Economic efficiencies are considered in the second phase, should the authority determine that there is a possible anticompetitive effect.
Any economic efficiency can be considered (eg, reduction of costs, economies of scale, complementation of services, failing firm – avoid losing a participant in the market-, benefits to the consumer, etc).
Non competition issues are not considered as part of the review. One of the main reasons why the ASCA was enforced was to grant Coprocom with more independence, to ensure that there is no interference of government interests other than the ones protected by Competition Law. Prior to the law, there used to be some concerns about the interference of the Ministry of Economy over Coprocom. These concerns were identified by the OECD in its general economic analysis of Costa Rica. And to a very large extent, those concerns were precisely the ones that resulted in the legal reform of 2019.
Joint ventures are analysed based on the same rules as any other concentration. Possible coordination issues are considered as a part of the joint venture analysis.
Coprocom is authorised to impose fines and order the divestment or demerger of any transaction which was not notified. As such, it has the ability to interfere or prohibit a transaction which had not been notified.
In order to reject a concentration and block a transaction, Coprocom only needs to demonstrate that the concentration causes a significant anticompetitive effect which is not migitated neither by the pro-competitive effect of the transaction, nor by the remedies suggested by the parties (if applicable).
If after the second phase of the process, Coprocom considers that the transaction causes an anticompetitive effect, Coprocom will grant a hearing to the parties where they may propose measures to mitigate such effects. There are no specific listed measures and the parties may propose any measure that they deem appropriate to mitigate such effects. Divestures are the most common remedy which is offered by the parties
There are no legal standards that the remedies must meet. The suitability of such remedies will depend on the assessment made by Coprocom on a case by case basis. There is not a taxative list of possible remedies which may be implemented by the parties. As such, the parties have a wide range of possibilities regarding the remedies that they may offer.
Divesting is a remedy that has been applied in the past. There are no precedents of remedies that address non competition issues. As mentioned, non competition issues should not be a reason to reject a concentration.
Generally, the parties can initiate the negotiation of remedies after the second phase of the process has been concluded and once that the Authority determines which are the potential anticompetitive effects of the transaction.
However, if from the initial notification the parties understand that the transaction will require remedies since it generates anticompetitive effects, they may approach the authority and try to start finding a solution that would be acceptable. Coprocom has an open doors policy where it encourages this type of discussions, and there is no specific stage that needs to be reached before such discussions can start.
There is no standard approach regarding the conditions and remedies, and the conditions and specific implementation of the remedies shall be determined by the Commission. Coprocom may enable the parties to complete the transaction and implement the remedies afterwards, just as it may order the implementation prior to closing the transaction.
Penalties for failure to comply with the remedies range from 0.1% to 10% of the involved agents' revenues. Also, the Commission may eventually order divestments or impose measures to ensure that the object or purpose which aimed to be achieved through the measures is satisfied.
The formal decision is issued to the parties. This decision contains all the information regarding the analysis of the transaction, the relevant markets, the effects on such markets, etc. This decision which is notified to the parties generally contains sensitive information such as the sales of the parties, since it must be duly motivated to comply with the 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.
Finally, the parties may approach Coprocom if they have a problem with certain information being revealed. As mentioned, usually any sensitive information will not be revealed; but, should the parties have any concerns about specific information, they may request Coprocom that such information is kept confidential.
The authorities have required remedies recently but not pertaining foreign-to-foreign transactions.
There is no legal framework that establishes how ancillary restraints should be covered beforehand. It 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.
The concentration authorisation process requires that a notice is published in a national newspaper, with the purpose of allowing any third party to appear before the authority and express its arguments in relation to the concentration. Those third parties have the right to manifest their position. They may provide proof against the transaction, as well as their arguments as to the reasons why the concentration should be admitted or rejected.
In some cases, third parties are directly approached by the Commission which provides them an RFI in the form of a questionnaire. However, any third party, regardless of its relation with the transaction, may submit information or documents pertaining the transaction and their position towards it.
The authority typically contacts third parties as part of its review process. Generally, the entities approached by Coprocom are: providers, main customers, distributors, and competitors.
Usually, the most significant entities of the market are approached. These contacts are generally made through broad questionnaires.
Market testing the remedies offered by the parties may be done by the authority as well. In such cases, the authority would lean towards testing such remedies with the third parties that manifested opposition to the transaction.
The notification of the transaction is made public since the parties are obliged to publish a notice in a national newspaper disclosing the existence of the transaction. The description which needs to be provided is very brief and does not disclose details of the transaction.
The commercial information which is disclosed is considered to be confidential and is kept on a separate casefile. Only the parties have access to this casefile.
There are internal agreements between authorities to exchange information and also to seek advice related to similar cases that other authorities may have reviewed. However, whenever such co-operation occurs, it is rarely something that is disclosed.
The ruling by Coprocom is subject to an administrative appeal before Coprocom, and then it is subject to judicial review. There have not been judicial reviews on rulings related to concentration authorisation processes. However there have been appeals against other sanctions imposed by Coprocom.
Some of those precedents have resulted in the resolutions of Coprocom being nullified.
An administrative appeal before Coprocom is generally resolved within one month. The judicial review does not have a clear time frame, and it may take between six months and two years.
In theory, third parties cannot appeal a clearance decision. However, there may be exceptions to this rule, if it is demonstrated that the appellant may legitimately do so, and for that purpose the appellant will need to demonstrate that it has a direct interest and was affected directly by the resolution. There are no precedents regarding this mater
The most relevant development was the Act to Strengthen the Competition Authorities, which introduced some relevant changes to the competition law legal framework in Costa Rica.
The most relevant changes were:
This last point is relevant as previously there were some acquisitions of minor companies with irrelevant participations in the market, which were obliged to be notified, if the purchaser was a large entity. Now, most of those smaller or irrelevant transactions are not obliged to be notified.
There have been three concentrations rejected. There have been fines imposed due to failure of notifying and there are currently some transactions which are being investigated. So far, there are no precedents of sanctions imposed for failure of notifying foreign-to-foreign transactions.
The main concern or the what seems to be the most significant issue where Coprocom focuses is the establishment or strengthening of a dominant position in the market. Market share is a relevant factor which is considered in this analysis, however, the access or establishment of specific advantages that could lead to market foreclosure has also been considered in the past.
Coprocom issued the resolution 02-2020 to regulate its procedures during the COVID-19 crisis. This resolution mentions that any filing has to submitted electronically and that all personal meetings have been suspended. As such, any inquires have to be made by phone/email. This process remains in effect up to this date.
COPROCOM is still operating normally. Coprocom is actually working to issue publications providing preventive information reminding companies that even during these crisis times, companies cannot incur in anticompetitive behaviour, nor is there a waiver on merger notification obligations.