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 and the Regulations to the ASCA are other relevant bodies of law.
The Commission for the Promotion of Competition (Coprocom, or the "Competition Commission") has also published the Guidelines to Analyse Economic Concentrations, which contain relevant dispositions and information regarding the merger notification process.
Telecommunications is the only sector that has a special legislation pertaining to 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). In such sectors, there may be some regulations or guidelines that are applicable only to concentrations involving regulated entities. However, these sectors are all overseen by the Competition Commission.
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. 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.
The parties, in qualified circumstances, may request a waiver of the suspensive effect of the notice. However, as indicated above, there is no exception to the obligation to notify.
In Costa Rica, there are different penalties for failing to notify.
The following 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. Hence, a concentration that must be notified for the purposes of the Competition Act and its regulations would be any act or contract that contains at least the following elements:
Internal restructurings 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. As such, given that the definition of concentration according to the Competition Act focuses on the change of control, internal restructurings are not subject to notification.
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 a transaction is determined to be classified as a concentration according to the law, the parties must analyse whether or not the jurisdictional thresholds are met. There are two thresholds that need to be met by the parties: the joint threshold and the individual threshold.
Transactions that fall below these thresholds 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 transaction required to be notified, but this is no longer the case.
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 that 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, this should be analysed on a case-by-case basis.
The group-wide definition generally applies to calculate the thresholds for the buyer. If there have been acquisitions or divestments that are not reflected in the most recent financial statements, there should be some observations made in the filing. The Competition Commission revises the company՚s financial statements in detail, and there will almost certainly 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 is not 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 taken in consideration to determine whether 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 some change of control. 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 to the application of the thresholds to joint ventures.
Lastly, 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 power to reject the transaction or to divest or order the reversal of a transaction that was not notified. Coprocom may also impose hefty fines on the parties.
The powers that the Authority has within the investigation are also extensive. Should the Competition Commission have substantiated that there was a concentration that was not notified, then it may start an investigation. In such an 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 on the involved parties՚ premises.
The statute of limitations to sanction a concentration that 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.
If the parties did not request a waiver of the suspensive effects of the notification, the parties must submit the notification and receive clearance prior to closing. Failure to file the notification may result in financial penalties, as well as other measures such as divestiture or de-concentration. Fines range from 0.1% to up to 10% of the parties՚ total revenues generated in Costa Rica during the previous fiscal year.
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.
There are no specific exceptions to the suspensive effect. However, the ASCA states that the Competition 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 Competition Commission in its resolutions for each particular case.
Penalties are imposed for failure to notify; such penalties are not divulged, but the Commission՚s resolutions are public so they can be accessed. The Commission generally communicates 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, however Act No 9736 states the possibility of Coprocom establishing such filing fees in the future.
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.
The penalties for failure to notify 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 that 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 procedure is divided in two different phases.
Phase I consists of a general assessment of the transaction in order for Coprocom to determine whether or not it may have anti-competitive effects on the market. Coprocom must issue its resolution within a maximum term of 30 calendar days. However, the clock runs until all the required information is completed, as explained below.
Phase I starts with the notification. From that point, Coprocom has 15 business days to request additional information. If Coprocom does request further information, the clock starts running on the date of filing. However, if Coprocom issues an RFI, the clock continues to run until all of the requested information has been submitted.
This phase ends with Coprocom either authorising the transaction or stating that it perceives a risk of anti-competitive effects, and at this point phase II should start.
Phase II allows Coprocom to assess the potential anti-competitive effects in more detail, and the potential efficiencies that may be generated to determine if they offset those anti-competitive effects. The parties may offer and discuss potential remedies with Coprocom. Phase II begins with an additional RFI issued by Coprocom and it may extend up to 90 additional calendar days,from the moment the parties fulfil that RFI.
After these phases have been completed, 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, as discussed in 5. Decision: Prohibitions and Remedies, in particular 5.5 Negotiating Remedies With Authorities.
Parties can engage in pre-notification discussions with Coprocom. This is something that has been done in the past and has become more 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 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 have the effect of suspending the review term. If the complete information has not been provided, the clock stops running.
One of the goals of the 2019 reform was to smooth the merger notification process and reduce the amount of information requested on transactions that clearly posed no risk to competition. However, the Commission is still requesting information on almost all mergers that are notified. Despite this, the time it takes to resolve a notification has been reduced considerably since the said reform.
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 more expedite process for clearance.
The substantive test for clearance consists of an analysis of the anti-competitive effects and the 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, then Coprocom will authorise the concentration in the first phase of the process. However, if Coprocom identifies any concerns regarding potential anti-competitive 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 to Coprocom's position and may also state the efficiencies or pro-competitive effects that derive from the concentration and offset such anti-competitive effects. Coprocom may also impose additional conditions in order to mitigate the anti-competitive effects.
At the end of the second phase, if Coprocom considers that there are anti-competitive effects associated with the transaction that pose a significant concern, it shall grant the parties the opportunity to propose measures to mitigate those effects.
Generally, the markets that will be analysed in more depth are the ones where there is an overlap between the target and the buyer. The market shares have an impact on whether or not the Competition Commission considers that there is potential for anti-competitive 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.
The authorities frequently rely on case law from other jurisdictions, mainly the USA and the EU. However, other jurisdictions such as Colombia and Mexico are also used as reference.
There is no exhaustive list of competition concerns that Coprocom needs to analyse. As such, the Competition Commission will investigate unilateral effects, co-ordinated effects, conglomerate or portfolio effects, vertical concerns and elimination of potential competition.
Economic efficiencies are considered whenever the transaction may result in an anticompetitive effect (second phase). If the transaction does not generate anticompetitive effects, there is no need for Coprocom to analyse economic efficiencies. Any economic efficiency can be considered (eg, reduction of costs, economies of scale, complementation of services, avoiding losing a participant in the market, benefits to the consumer, etc). An example of how economic efficiencies are reviewed would be a transaction that generates economies of scale which enable a company to reduce its costs and lower its final prices.
Non-competition issues should not be relevant in the review process. One of the main reasons why the ASCA was enforced was to grant Coprocom more independence to ensure that there is no interference of government interests other than the ones protected by competition law, as part of recommendations issued by the OECD in 2020. Prior to the law, there were some concerns about the interference of the Ministry of Economy over Coprocom.
Joint ventures are analysed based on the same rules as any other concentration. Possible co-ordination 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 that was not notified. As such, it has the ability to interfere or prohibit a transaction that 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 anti-competitive effect, which is not mitigated either by the pro-competitive effect of the transaction or by the remedies suggested by the parties (if applicable).
If the transaction is not authorised, the parties may not close it and they will need to find an alternative solution.
If, after the second phase of the process, Coprocom considers that the transaction causes an anti-competitive effect, Coprocom will grant a hearing to the parties where it 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. Coprocom may also suggest remedies.
Among remedies that have been used are:
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 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.
Divesting is a remedy that has been applied in the past. There are no precedents of remedies that address non-competition issues and non-competition issues should not be a reason to reject a concentration. For other common remedies see 5.2 Parties' Ability to Negotiate Remedies.
Generally, the parties can initiate the negotiation of remedies after the second phase of the process has been concluded and once the Authority determines the potential anti-competitive effects of the transaction.
However, if from the initial notification, the parties understand that the transaction will require remedies since it generates anti-competitive effects, they may approach the Authority and try to start finding an acceptable solution. Coprocom has an open door policy where it encourages this type of discussion, and there is no specific stage that needs to be reached before such discussions can start.
There is no standard approach regarding conditions and remedies, and the conditions and specific implementation of the remedies shall be determined by the Commission on a case-by-case basis. 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 that aims 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. The decision that is notified to the parties generally contains sensitive information such as the parties' sales, since they must be duly motivated 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.
Finally, the parties may approach Coprocom if they have a problem with certain information being made available. 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 confidential.
It is not common for Coprocom to require remedies in foreign-to-foreign mergers. Also, in complex concentrations, foreign authorities will usually impose remedies that also have repercussions here in Costa Rica.
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.
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 evidence to dispute the transaction, as well as their arguments as to the reasons why the concentration should be admitted or rejected.
In some cases, Coprocom may directly request information to certain economic agents (distributors, competitors, suppliers, main clients, consumer organisations), providing them an RFI in the form of a questionnaire. However, any third party, regardless of its relation to the transaction, may submit information or documents pertaining to 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 in the market are approached. These contacts are generally made through broad questionnaires.
The Authority 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.
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 that needs to be provided is very brief and does not disclose details of the transaction.
The commercial information that is disclosed is considered to be confidential and is kept on a separate casefile. Only the parties have access to this casefile.
In conclusion, Coprocom creates two casefiles: one confidential casefile, which may only be accessed by the Authority and the notifying parties; and another non-confidential casefile, which is accessible to the public.
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, such co-operation is rarely 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 in a period of 15 business days. The judicial review does not have a clear timeframe, and it may take between one to three 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 matter.
There are no special rules on foreign direct investment or foreign subsidies. There are special sectors in which the merger authorisation process involves some co-ordinated work from the Competition Authority with other regulatory authorities. These sectors are: banking and finance, telecommunications, insurance, pensions and securities.
The most relevant legislative development was the ASCA, which introduced some relevant changes to the legal framework of the competition law in Costa Rica, namely:
This last point is particularly relevant as previously there were some acquisitions of minor companies with irrelevant participation 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.
Executive Decree 43305 setting out the Regulations to Law No 9736, the "Act to Strengthen the Competition Authorities" was enacted on 29 October 2021. These Regulations introduce relevant criteria regarding the application and interpretation of the ASCA and the Competition Act.
Recent enforcement records show that three concentrations have been rejected. There have also been fines imposed due to failure to notify (the latest one being in 2022). These were related to transactions that did not pose a significant anti-competitive effect, so no divestment was ordered. Some transactions are currently being investigated. So far, there are no precedents of sanctions being imposed for failure to notify foreign-to-foreign transactions.
The main concern, or what seems to be the most significant issue on which Coprocom focuses, is the establishment or strengthening of a dominant position in the market. Market share is a relevant factor that is considered in this analysis; however, the access to or establishment of specific advantages that could lead to market foreclosure have also been considered in the past.