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Survey of international jurisdictions providing for judicial merger prohibition decisions.

C. Remedies

The FCCA will request the Finnish Market Court to prohibit a transaction, and the Finnish Market Court will prohibit or impose conditions on a transaction if that transaction otherwise would "significantly impede effective competition in the Finnish markets or a substantial part thereof, in particular as a result of the creation or strengthening of a dominant position." (187) Moreover, under the Competition Act, the FCCA has an obligation to negotiate remedies with the parties that could eliminate competition concerns arising from mergers before proposing to the Finnish Market Court that a merger be prohibited. (188) The FCCA cannot impose any conditions to which the notifying parties have not consented (189) and therefore is not in a position unilaterally to impose conditions on a transaction. If remedies that would eliminate the competition concerns cannot be agreed, the FCCA must request that the Finnish Market Court prohibit the merger. (190)

Conversely, if the remedies are sufficient to eliminate the competition concerns associated with the merger, the FCCA cannot refer a transaction to the Finnish Market Court for prohibition. (191) Typically, competition concerns identified by the FCCA are resolved by imposing remedies; as of early 2013, although several cases have entered Phase II of the investigation and have been resolved by commitments given by the parties, (192) the Finnish Competition Authority (now the FCCA) has proposed that a concentration be prohibited only twice. (193)

The FCCA may consider structural or behavioral remedies, or a remedy with elements of both, although as a general rule structural remedies are preferred (194) in order to avoid an additional monitoring burden. (195) Structural remedies that may be required by the FCCA include, for example, the divestment of tangible assets, such as a specific business or a part of a business, together with production capacity or intellectual property rights such as patents or (occasionally) trademarks, or the dissolution of a cooperative agreement or the withdrawal from a joint venture in order to eliminate links between the merging parties and their competitors. (196) The FCCA generally imposes behavioral remedies in situations in which the competition concerns associated with the merger are temporary and likely to disappear after a certain transitional period. (197) Such remedies include, for example, obligations relating to licensing and supply and distribution. (198)

As set out above, the Finnish Market Court may also clear a transaction based on conditions (199); however, unlike the FCCA, it may impose conditions without the consent of the parties. (200)

The FCCA can consider remedies both during Phase I and Phase II of the merger control procedure. (201) In practice, however, remedies are "rarely accepted" by the FCCA during Phase I; the FCCA's view is that during the one-month Phase I investigation period the competition concerns are seldom sufficiently precisely identified (202) and that sufficient analysis of the proposed remedies or carrying out of adequate market testing generally is not possible. (203) In principle, however, the procedures and standards for reviewing proposed remedies are the same during both phases of the investigation. (204) In general, the notifying parties propose to the FCCA commitments that they believe eliminate the competition concerns identified. (205) The FCCA's view is that a "radical intervention" by it in the remedies package may unnecessarily lower the sales price of the assets to be divested or potentially damage both the remaining business operations and the operations to be divested. (206) As a result, the FCCA's role appears to be to consider whether the remedy package is sufficient to eliminate competition concerns, rather than to propose remedies itself.

The FCCA considers the adequacy of the proposals by (among other things) conducting market testing, (207) in particular consulting with selected third parties, including customers, competitors and suppliers of the merging parties, together with other stakeholders and industry experts. (208) The market testing is directed in particular at those third parties that expressed concerns during Phase I of the investigation. (209) If the FCCA deems the proposed remedies sufficient to eliminate the competition concerns associated with the transaction, the parties are asked to commit to the remedies in writing, after which the FCCA orders that the parties comply with the remedies. (210)

The FCCA is responsible for ensuring that the remedies are implemented as agreed (211) and during the negotiation process, issues relating to enforcement and monitoring of the implementation of these remedies are also discussed. (212) The FCCA typically appoints trustees to monitor compliance with technical details and to ensure the practical viability of remedies. (213) In the event that the parties implement the transaction but fail to comply with the remedies, the FCCA may ask the Finnish Market Court to impose a penalty payment of up to ten percent of worldwide turnover. (214) The FCCA also may apply to the Finnish Market Court for dissolution of a transaction; however, such application must be made within one year of the final decision becoming effective or of the date of implementation of the transaction. (215) As a result, the FCCA generally sets deadlines of less than one year to comply with remedies. (216)

To date, there have been no foreign-to-foreign merger cases in which the FCCA has requested remedies.

D. Third-party involvement

Under Finnish law, third parties do not have the right to challenge transactions before the FCCA or Finnish Market Court and as a general rule cannot bring an appeal against the decisions of the FCCA or Finnish Market Court, but they may have certain rights of intervention in merger review proceedings following notification of a transaction. The FCCA has no obligation to begin investigating transactions that have not been made public; thus, even if a transaction otherwise has been notified appropriately, the time does not begin to run until the transaction is made public. (217) On receipt of the notification, the FCCA publishes on its website the identities of the parties, together with the date of notification and the case number.

Under the Finnish Act on the Openness of Government Activities, all documents in the possession of any public authority (including the FCCA) are considered public, (218) and any third party can request information about specific public documents held by a public authority, (219) unless (among other things) the document contains professional secrets or business secrets, (220) disclosure of which would cause economic loss. (221) The FCCA assesses whether information identified as business secrets by the parties falls within the scope of protected information and, if so, protects it from disclosure. (222)

Once a transaction has been notified and made public, the FCCA generally will send market questionnaires to the parties' competitors, customers, and suppliers; in the event that the FCCA opens a Phase II investigation, this may be followed up with a more detailed questionnaire. This process has two objectives: (1) to assist the FCCA with its information gathering exercise for analysis of the competitive impact of the transaction; and (2) to afford the relevant market participants the opportunity to comment on the proposed transaction. (223) Moreover, other stakeholders and industry experts may also be heard. (224) Thus, third parties generally can access nonconfidential information on the transaction and provide comments during the review process.

The FCCA also will market test any remedies proposed by the parties to the transaction by (among other things) requesting the views of third parties. (225) However, notifying parties may designate elements of the remedy package as business secrets, which may make it more difficult for the FCCA to obtain third parties' input. In order to assess the proposed remedies reliably, the FCCA must to be able to describe the content of the commitments to third parties as accurately as possible. (226)

As a general rule, decisions of the FCCA made under the merger control rules may be appealed to the Finnish Market Court by those parties whose rights, obligations, or interests have been directly affected by the FCCA's decision. (227) Decisions of the Finnish Market Court may similarly be further appealed to the Supreme Administrative Court. However, both the Finnish Market Court and the Supreme Administrative Court have held that a clearance decision by the FCCA generally does not have the requisite effect on competitors of the parties to the transaction, (228) and therefore competitors do not generally have the right to appeal such decisions to the Finnish Market Court or the Supreme Administrative Court.

V. NEW ZEALAND

A. Overview

The Commerce Act 1986 (NZCA) governs competition issues arising in relation to mergers and acquisitions. (229) The NZCA is enforced by the New Zealand competition authority, the Commerce Commission (NZCC), which is an independent, quasijudicial body, whose purpose is to promote market efficiency by fostering (among other things) healthy competition among businesses. (230)

The NZCC adjudicates applications for clearance or authorization of transactions. (231) In the context of the former it may clear a transaction that does not infringe the prohibition on anticompetitive transactions set out in section 47 of the NZCA (232); in the context of the latter it may authorize a transaction if the public benefits arising from the transaction outweigh its anticompetitive effects. (233) The NZCC may accept undertakings, which then form part of the cleared or authorized transaction (although behavioral undertakings cannot be accepted for mergers and acquisitions). (234) In order to prevent a proposed transaction that infringes section 47 of the NZCA, the NZCC must take enforcement action seeking an injunction in the High Court. (235) The NZCC also has jurisdiction to investigate any transaction that it believes has infringed or will infringe the NZCA (even if not notified) and can initiate court proceedings to obtain an injunction or a declaration of breach and remedies, apply for a cease and desist order, reach a settlement or take no further action in respect of such transactions. (236) Decisions of the NZCC may be appealed to the High Court or challenged by judicial review (237); judgments of the High Court may be appealed to the Court of Appeal (238) and then to the Supreme Court (if the Supreme Court grants leave). (239)

The NZCC generally comprises between four and six members, at least one of whom must be a barrister and solicitor of at least five years' standing (240); moreover, from time to time the Minister of Commerce may appoint associate members in relation to a specific matter or class of matters. (241) The NZCC also includes two Cease and Desist Commissioners, whose sole purpose is to hear applications for cease and desist orders. (242)

B. Process

New Zealand has a voluntary merger regime; the NZCA does not impose a mandatory notification requirement on the parties to a transaction and does not set out mandatory asset or turnover thresholds for notification. (243) However, the NZCC actively monitors transactions that affect markets in New Zealand, and if it becomes aware of a transaction that it believes may infringe the NZCA of which it has not been notified, it may investigate that transaction. (244) There is no suspensory obligation in New Zealand; in order to prevent the parties from implementing a transaction, the NZCC must obtain an injunction from the High Court or a cease and desist order from a Commissioner. (245) However, the NZCC cannot grant formal clearance or authorization to a transaction that has already been completed. (246)

The prohibition of anticompetitive mergers in the NZCA extends to transactions that take place outside New Zealand "to the extent that the acquisition affects a market in New Zealand." (247) As a result, if an offshore transaction has, or is likely to have, the effect of substantially lessening competition in a market in New Zealand, it will fall within the scope of the NZCA and will be subject to the jurisdiction of the NZCC. (248) To date, the closest the NZCC has come to commencing proceedings in respect of a foreign-to-foreign transaction involved the postmerger corporate reorganization of New Zealand subsidiaries following a foreign-to-foreign merger (249) These proceedings ultimately were settled out of court.

As indicated above, two procedures may be initiated before the NZCC for the formal review of a transaction: an application for clearance or an application for authorization.

On receipt of an application for clearance from the acquirer, the NZCC conducts its initial investigation and aims to reach a final decision within forty business days from the date of the application. (250) If, however, the issues raised are complex, the NZCC may seek an extension of the deadline for a final decision to within sixty working days from the date of the application (or such longer period as the NZCC and the parties agree). (251) If no decision is issued, the application is deemed denied. (252) The above timelines are illustrative only and may vary depending on the complexity of the case at hand; however, the NZCC has committed to a goal of determining applications for clearance within approximately forty days. (253)

On receipt of an application for authorization, the NZCC's objective is to render a decision within sixty business days of the application, although in practice applications have taken significantly longer. (254) As a result of the time, complexity, and costs involved in the authorization process, authorizations have not often been sought. (255) However, in May 2009, the NZCC issued the Streamlined Authorisation Process Guidelines (NZ Authorisation Guidelines), (256) which apply to those transactions with "obvious public benefits and ... a relatively limited impact on competition." (257) Under the NZ Authorisation Guidelines, the NZCC aims to issue a final decision within forty business days of registration of the transaction, (258) unless a conference is held, in which case the NZCC will aim to render its final decision within sixty business days from the date of the application (or such longer period as the NZCC and the parties agree). (259) If no decision is issued, the application is deemed denied. (260) These timelines are illustrative only and may vary depending on the complexity of the case at hand. (261)

The NZCC issues and publicly announces its decision in respect of a clearance or authorization application, and aims to publish reasons for its decision within twenty business days in respect of a clearance and as soon as possible in respect of an authorization. (262)

The NZCC's decision in respect either of a clearance or an authorization may be appealed (by certain persons) to the High Court within twenty business days (this period may be extended on application to the High Court) (263); moreover, the High Court will hear applications for judicial review of the NZCC's exercise of its statutory powers in relation to a clearance decision. (264) The court on appeal can confirm, modify, or reverse the NZCC's determination, or any part of it, or exercise any of the powers that could have been exercised by the NZCC. (265) The court can also direct the NZCC to reconsider, either generally or in respect of specified matters, the whole or a specified part of the matter to which the appeal relates. (266) Pending the outcome of an appeal, the decision of the NZCC remains in force unless the Court otherwise orders. (267)

The NZCC cannot make a determination that the Act has been breached, nor can it impose penalties or other sanctions. However, the NZCC can apply to the Cease and Desist Commissioners to make a cease and desist order when there is a prima facie case that a transaction has infringed or would infringe section 47 and it is necessary to act urgently in order to prevent harm to a particular person or consumers or the general public. (268) If restraining the person will not restore competition, the Cease and Desist Commissioners may in the order require a person to perform an act. (269) In order to obtain a cease and desist order, the NZCC must follow the prescribed process set out in the NZCA, under which NZCC staff must prepare and present a report requesting approval to seek such an order, after which they apply to the Cease and Desist Commissioners and serve notice on the parties, who may make written submissions, followed by a hearing in which the parties may have legal representation and may call and cross examine witnesses. (270) In practice, this process may be lengthy and it may be more expedient for the NZCC simply to seek an interim injunction at the High Court.

The NZCC also can bring an action in the High Court in order to obtain a declaration that a merger breaches (or that a proposed merger would breach) the NZCA, (271) an injunction restraining breach of the NZCA, (272) an order for divestiture of assets or shares, (273) or financial penalties of up to NZ$5 million per offense for corporations and NZ$500,000 per offense for individuals. (274)

C. Remedies

The NZCC will bring an action in the High Court to prevent a transaction that "would have, or would be likely to have, the effect of substantially lessening competition in a market." (275) Moreover, the NZCC may accept undertakings and issue a clearance or authorization on the basis of such an undertaking (276); however, the NZCC may consider only structural, not behavioral, remedies. (277) The undertaking must be in writing (278) and may be offered at any time during the NZCC's review; however, if offered near the end of its review process, the NZCC may need to request an extension in order to consider the competitive impact of the amended transaction. (279) The NZCC generally will not suggest a remedy (although it may invite a divestment remedy as a possible option (280)); it takes the position that the parties are in the best position to identify specific assets to be divested. (281) However, the NZCC will discuss the structure and terms of the proposed divestment in order to ensure that it remedies the competition concerns raised by the transaction. (282) Any issues raised by the divestment remedies may be indicated in the Letter of Issues or Letter of Unresolved Issues. (283)

If the transacting parties fail to comply with an undertaking given in order to obtain clearance or authorization, the transaction is no longer protected from proceedings under section 47 of the NZCA. (284) If the NZCC is satisfied that there has been such a failure, it may use a cease and desist order or bring proceedings in the High Court for an injunction, (285) a financial penalty, (286) or a divestment order. (287) When considering whether to impose financial penalties or grant a divestment order, the High Court is specifically instructed not to consider the appropriateness of the undertaking initially, whether the undertaking or any of its terms are still necessary or desirable, or whether there has been a substantial lessening of competition; rather, the High Court considers merely whether the terms of the divestment undertaking have been met. (288)

The parties to a foreign-to-foreign transaction may offer remedies in the same way as parties in a domestic transaction. The High Court has held that the NZCC's jurisdiction extends to divestment undertakings offered by foreign entities to remedy the foreign acquisition of shares or businesses that have an effect on New Zealand markets, but noted that enforceability in respect of foreign entities was questionable. It stated, "[T]he [NZCA] therefore extends to those transactions although whether ... the [NZCA] can do anything effective about it remains a matter for doubt." (289)

D. Third-party involvement

If the parties to a transaction have obtained clearance or authorization of a transaction from the NZCC, the transaction cannot be challenged provided it is consummated within twelve months of the NZCC's granting the clearance or authorization. (290) However, if the transaction has not been granted a clearance or authorization, third parties can initiate court proceedings seeking a declaration that the transaction infringes the NZCA together with an injunction or damages if they have suffered loss as a result of the transaction. (291) Moreover, third parties that have participated in the NZCC proceedings by participating in a conference also have the right to appeal decisions of the NZCC to the High Court. (292) Under proposed amendments to the NZCA, this right of appeal will be broadened to any party that has participated in the NZCC decision process. (293)

Within five days of receipt of an application for clearance or authorization, the NZCC records that application on the register. (294) Generally, a nonconfidential version of the application and a media release will be posted on the NZCC's website (295); although the parties may request that the application itself and the fact that it has been filed are kept confidential, such a request will likely be granted only for a limited period of time and in exceptional circumstances. (296) The NZCC subsequently publishes its Statement of Preliminary Issues (in an application for clearance) or its draft determination (in an application for authorization) in part to allow interested third parties the opportunity to consider the issues raised by the transaction. (297)

All information received by the NZCC from the transaction parties or third parties is in principle available under the Official Information Act 1982. (298) However, the Official Information Act does not require disclosure of information that would prejudice investigations and protects confidential information, in particular when the public interest in making the information available is outweighed by reasons to withhold information (such as because it would unreasonably prejudice the provider's commercial position). (299)

During its investigation, the NZCC may consult with any person whom it believes could assist in its decision to issue a clearance or an authorization, (300) and in practice gathers information from market participants, including customers, competitors, and suppliers. (301) The NZCC also accepts unsolicited input and written submissions from third parties, including in response to the registration of the application and publication of the Statement of Issues (in the context of a clearance application) or draft determination (in the context of an authorization application). (302) Moreover, if, at an applicant's request, the NZCC holds a conference, any person that the NZCC considers desirable has the right to attend and be heard. (303) It should be noted, however, that the NZCC has indicated that conferences will "rarely be held" because to date information requests and interviews have enabled it to make well-informed decisions. (304) Thus, third parties generally can access nonconfidential information on the transaction and provide comments during the review process.

The NZCC also will seek third party views as to whether a proposed divestment would remedy any substantial lessening of competition in the relevant market. If a divestment undertaking is offered after the investigative process (for example, in response to the Letter of Issues), the NZCC typically will recontact third parties with which it has spoken and from which it has received information, in order to obtain comments on the divestment undertaking. (305)

As a general rule, decisions of the NZCC made under the merger control rules may be appealed to the High Court by the transaction parties and any third party that participated in a conference (if held) during the review process. (306) Decisions of the High Court similarly may be further appealed to the Court of Appeal. (307) The most recent appeal to be heard in the High Court was an appeal by a third party. (308) In this case, the NZCC had authorized an acquisition and an affected customer appealed. The High Court ultimately dismissed the appeal.

VI. SWEDEN

A. Overview

In Sweden, mergers are regulated under the Swedish Competition Act (SCL), (309) which is enforced primarily by the Swedish Competition Authority (SCA). The SCA's objective (among other things) is to "promote effective competition in the private and public sector" (310) and its responsibilities include the investigation of notifiable transactions, a process divided into two stages: the initial investigation and the special investigation, or Phase I and Phase II, respectively. (311)

The SCA itself has neither the power to prohibit a notifiable transaction nor to make an approval decision conditional upon remedies. These powers are vested only in the Stockholm District Court upon a summons by the SCA. (312) However, the SCA can--in Phase I and Phase II--accept voluntary remedies and in view of such remedies, clear a transaction. (313) Failure to comply with such remedies may be made subject to predetermined fines (314); if the parties in fact subsequently fail to comply with the remedies, the SCA must apply to the Stockholm District Court to actually impose the fines. (315)

In the context of mergers, the Stockholm District Court is responsible for ruling on summonses issued by the SCA to prohibit or to conditionally approve notified transactions. Rulings by the Stockholm District Court may be appealed by the SCA or the notifying party to the Swedish Market Court, the judgments of which are final. (316) However, there are limits on the right of appeal; in particular, the notifying parties cannot appeal the SCA's decision to initiate Phase II proceedings.

The SCL imposes a mandatory suspensory merger notification regime in Sweden. (317) The merging parties are required to notify a transaction if (1) the transaction constitutes a "concentration," (318) and (2) the parties' turnover exceeds the turnover thresholds. (319) Thus, a transaction that meets the notification requirements must be notified and, during Phase I, the parties may not proceed to implement the transaction; the SCA may issue an order subjecting the parties to a fine if they fail to comply with this obligation. (320) The suspensory obligation ceases upon expiration of Phase I, (321) but the Stockholm District Court may, at the request of the SCA, prohibit implementation of the transaction until a final decision on the transaction has been reached if the public interest in such a prohibition outweighs the inconvenience to the merging parties. (322) The SCA has no power directly to enforce a fine for failure to notify or for failure to comply with the suspension obligation. However, the SCA may request that the Stockholm District Court impose a fine if the notifying parties infringe its order making implementation of the transaction subject to a fine. (323) There is no limitation on the suspensory obligation for foreign-to-foreign transactions that are notifiable in Sweden; thus, such transactions are subject to the suspensory obligation in the same way as a domestic transaction.

The SCA falls within the ambit of the Ministry of Enterprise, Energy and Communications. (324) It is headed by a Director-General and has four antitrust units focused on different industrial sectors. The Concentration Group consists of specialists from the various units within the SCA and is responsible for the review of all merger control cases. In more complex cases or when a Phase II investigation is launched, a specific project group is formed that include SCA staff that are not members of the Concentration Group. (325) The case team for a merger control case will regularly include an economist, and the SCA has occasionally instructed outside economic experts to assist with the analysis. (326)

The main proceedings at the Stockholm District Court are heard before four members, two of whom are legally qualified judges and two of whom are economics experts. One of the legally qualified judges sits as chairperson of the Court. (327) Decisions of the Stockholm District Court may be appealed to the Swedish Market Court, which consists of a chairman and a vice chairman together with five special members. (328) The chairman, the vice chairman, and one of the special members are experienced legally qualified judges. The other special members are economics experts. (329) With the exception of certain procedural questions upon which the chairman may adjudicate alone if he so wishes, a quorum requires the presence of the chairman and three other members. (330)

B. Process

Phase I commences once the SCA has declared the notification complete. As a general rule, the SCA will quickly inform the notifying parties if any data are missing. (331) To avoid a notification being declared incomplete, prenotification consultation with the SCA is recommended. Within twenty-five business days, the SCA must determine whether to clear the transaction or initiate Phase II proceedings (332); if the notifying parties submit a remedy proposal during Phase I, this period is extended to thirty-five business days. (333)

When Phase II proceedings are initiated, the SCA must, within three months, either clear the transaction (unconditionally or on the basis of voluntary remedies), or request that the Stockholm District Court prohibit the transaction or approve it subject to remedies. (334) This period may be extended by one month at a time with the permission of the Stockholm District Court, either with the agreement of the notifying parties or if there are compelling reasons for the extension. (335) If the SCA fails to refer a transaction to the Stockholm District Court either during Phase I or Phase II, that transaction is deemed to have been cleared. (336) If the SCA has issued a summons to the Stockholm District Court, the Stockholm District Court must reach a decision within six months whether to clear the transaction unconditionally or subject to remedies, or prohibit the transaction. (337) This period may be extended with the parties' consent or if there are compelling reasons to do so. (338)

Leave to appeal is required with respect to a decision of the Stockholm District Court, (339) but not to appeal decisions of the SCA. (340) In the event of an appeal to the Swedish Market Court, judgment must be issued within three months from the last date on which an appeal may be initiated. (341) As with proceedings before the Stockholm District Court, this period may be extended with the parties' consent or if there are compelling reasons to do so. (342) Moreover, under the SCL, no measures may be taken in relation to a transaction, regardless of whether it was notified or not, two years after its implementation. (343)

It is unusual for the SCA to issue summons at the end of Phase II. (344) Since 1993, the SCA has issued summonses under the SCL to prohibit a transaction in only eight cases. (345) Of these eight cases, four were abandoned by the notifying parties following the SCA's summons. (346) In three cases, the Stockholm District Court dismissed the summons on substantive grounds and approved the transactions unconditionally (347) and, in one case, the Stockholm District Court dismissed the summons on procedural grounds. (348) To date, the SCA has not initiated an action to prohibit a foreign-to-foreign transaction.

C. Remedies

The SCA may clear a transaction either during Phase I or Phase II on the basis of remedies proposed by the notifying parties if such remedies are sufficient to eliminate the adverse effects of a concentration. The parties may propose such remedies at any time. (349) The SCL provides specifically for divestment or "some other measure" having a favorable effect on competition that does not exceed that which is required in order to eliminate the adverse competitive effects of the transaction. (350) Thus, both structural and behavioral remedies are accepted in Sweden.

If the SCA considers that a voluntary remedy proposal in either Phase I or Phase II is sufficient to address the competition concerns identified, it generally will clear the transaction, taking note of and detailing the remedies in the approval decision. However, in two cases in which remedies were proposed during Phase II, the SCA applied to the Stockholm District Court to issue a remedies order subject to a predetermined fine. (351) Given that since November 2008, the SCA is no longer required to obtain a court order to make noncompliance with a relevant remedy subject to fines, it is possible that voluntary remedies will, in the future, more often be subject (in the event of noncompliance) to predetermined fines. (352) As discussed above, if the issue of noncompliance subsequently arises, the SCA must nevertheless petition the Stockholm District Court for such fines to be imposed. (353)

D. Third-party involvement

Under Swedish law, third parties do not have the right to challenge transactions before the SCA, Stockholm District Court, or Swedish Market Court and cannot bring an appeal against merger decisions of the SCA or Stockholm District Court, (354) but they may have certain rights of intervention in merger review proceedings following notification of a transaction. Once the parties have formally notified the transaction to the SCA, the SCA publishes a brief notice on its website, which serves to inform interested third parties of the transaction.

As a general rule, in Sweden the public has an extensive right of access to documents in the possession of public agencies and bodies, unless the information contained in such documents is deemed "secret" under the Public Access to Information and Secrecy Act (PAISA). (355) The confidentiality of documents and information relevant to proceedings before the SCA and the Swedish courts are specifically regulated in PAISA. (356) In line with those provisions, the SCA requests that the notifying party indicate in the notification any secret information and provide a nonconfidential version of the notification. (357)

After the SCA publishes its notice of the transaction on its website, it will commence its market investigation, which includes contacting third parties. (358) The SCA also invites comments from third parties, including competitors. Third parties may also contact the SCA and cooperate informally in the review proceedings and may, by providing information to the SCA, influence its decision whether to issue a summons to the Stockholm District Court.

An appeal to the Stockholm District Court against a merger decision of the SCA, or the Swedish Market Court against a merger decision of the Stockholm District Court, may be made only by the parties to the transaction and the SCA. (359) However, a third party will be granted leave to intervene in proceedings if it demonstrates that it is probable that the merger litigation has a bearing on its legal rights or obligations. (360) Intervention may be made in support of either the parties to the transaction or the SCA. An intervener may not amend the pleas submitted by the party it supports and may not make any requests to the courts that are detrimental to the interests of that party. (361)

AUTHORS' NOTE: We thank Axel Riedlinger of Freshfields Bruckhaus Deringer (Austria), Sebastian Eyzaguirre and Santiago Bravo Sanz of Claro & CIA (Chile), Ilkka Leppihalme of Peltonen LMR (Finland), Torrin Crowther of Bell Gully (New Zealand), and Foad Hoseinian of Freshfields Bruckhaus Deringer (Sweden) for their assistance in relation to their respective jurisdictions. Any errors are, however, our own.

(1) For a further discussion of the European model, see Andrew Renshaw & Jan Blockx, Judicial Review of Mergers in the EU, in this issue of The Antitrust Bulletin.

(2) In New Zealand, as discussed further below, the agency may either apply to the court for an injunction, or to the Cease and Desist Commissioners for a cease and desist order to prevent the implementation of a transaction. See infra notes 268-270 and accompanying text.

(3) Bundesgesetz gegen Kartelle und andere Wettbewerbsbeschrankungen [Kartellgesetz 2005] [Austrian Cartel Act (ACA)] BUNDESGESETZBLATT [BGBL I] No. 61/2005.

(4) See Bundesgesetz uber die Einrichtung einer Bundeswettbewerbsbehorde [Wettbewerbsgesetz 2002] [Austrian Federal Act Establishing the Federal Competition Authority (AFCA)] BUNDESGESETZBLATT [BGBL I] No. 62/2002, [section] 1, [paragraph] 1.

(5) FCAA [section] 1, [paragraph] [paragraph] 1 & 3.

(6) Id. [section] 2, [paragraph] 1.

(7) ACA [section] 9, 1; [section] 10, [paragraph] 3.

(8) Id. [section] 12.

(9) Id. [section] 11, [paragraph] 1.

(10) Id. [section] 75, [paragraph][paragraph] 1 & 2.

(11) Id. [section] 40.

(12) Id. [section] 36.

(13) See, e.g., ACA, Strabag SE/Lafarge Cement CE Holding GmbH; Nostra Cement, Kft., BWB/Z-1269 (Oct. 13, 2010), available at http://www.en.bwb .gv.at / MergerControl / MergerControl_2010 / Seiten / BWB2fZ-1269.aspx; ACA, Schacke Elektrogrosshandelsgesellschaft mbH, BWB/Z-950 (Apr. 17, 2009); ACA, Helmut Thurner Elektrogrosshandel, Grosshandel mit Maschinen und Werkzeugen Gesellschaft m.b.H, available at http://www.en.bwb.gv.at /MergerControl/MergerControl_2009/Seiten/BWB2fZ-950.aspx. See also AFCP/Strabag SE, Kartellgericht [KartG] ]Cartel Court] Feb. 2, 2011, 27 Kt 39 / 10 15, 19 / 10; and AFCP / Rexel Austria GmbH, Kartellgericht [KartG] [Cartel Court] June 6, 2009, 29 Kt 14/09.

(14) Bundesgesetz uber die Einrichtung einer Bundeswettbewerbsbehorde [Wettbewerbsgesetz 2002] [Austrian Federal Act Establishing the Federal Competition Authority] BUNDESGESETZBLATT [BGBL I] No. 62/2002, [section] 16, [paragraph] 1. The Competition Commission consists of eight members with special economic, business management, sociopolitical, technological, or business law knowledge and experience. Id. [section] 16, [paragraph] 2.

(15) Id. [section] 16, [paragraph] 1.

(16) Id. [section] 17, [paragraph] 4.

(17) Bundesgesetz gegen Kartelle und andere Wettbewerbsbeschrankungen [Kartellgesetz 2005] [Austrian Cartel Act] BUNDESGESETZBLATT [BGBL I] No. 61/2005[section] 14, [paragraph] 1.

(18) Id. [section] 14, [paragraph] 2.

(19) Id. [section] 59, [paragraph] 1.

(20) Id., [section][section] 9,17.

(21) See AXEL REIDLINGER & ISABELLA HARTUNG, DAS OSTERREICHISCHE KARTELLRECHT 214 (2d ed. 2008). An underlying agreement that infringes the suspensory obligation is similarly invalid. ACA [section] 17, [paragraph] 3. This provision has not to date been enforced in the case of a foreign-to-foreign transaction governed by non-Austrian contract law, and it is unclear what approach would be taken in these circumstances.

(22) ACA [section] 17, [paragraph] 2; [section] 29, [paragraph] l(a).

(23) Id. [section] 17, [paragraph] 1; [section] 49, [paragraph] 2.

(24) Id. [section] 9. Under the ACA, as a general rule the following are deemed to constitute a "concentration": (1) the acquisition of an enterpriser, in whole or in substantial part, by an enterpriser, in particular through merger or transformation; (2) the acquisition by an enterpriser of a right to the operational facility of another enterpriser through company surrender agreements or business management agreements; (3) the direct or indirect acquisition of shares of a company that is an enterpriser, by another enterpriser, both in the event of achieving or exceeding a stake of twenty-five percent and in the event of achieving or exceeding a stake of fifty percent; (4) if at least half the members of the management bodies or the supervisory boards of two or several companies that are enterprisers are caused to be identical; (5) any other combination of enterprisers on the basis of which an enterpriser can directly or indirectly exercise a dominating influence on another enterpriser; and (6) the establishment of a joint venture which performs on a lasting basis all the functions of an autonomous economic entity. Id. [section] 7. Specific rules and exemptions may apply, for example, in the context of transactions between certain media businesses or for certain intragroup acquisitions. See id. [section] 8.

(25) Id. [section] 9. Under the ACA, as a general rule a concentration is notifiable if the enterprisers involved, in the last financial year preceding the concentration, achieved the following turnover: (1) more than 300 million [euro] worldwide; (2) more than 30 million [euro] domestically; and (3) at least two enterprisers worldwide more than 5 million [euro] each. Id. The ACA applies a de minimis exception, under which a concentration is not notifiable if, in the last financial year preceding the concentration: (1) only one of the enterprisers achieved a domestic turnover of more than 5 million [euro]; and (2) the other enterprisers involved achieved a worldwide turnover of no more than 30 million [euro]. Id. Specific rules and exemptions may apply, for example, in the context of transactions in the media or financial sectors and for certain intragroup transactions. See id. [section] 7, [paragraph] 4; [section] 9; [section] 19.

(26) Id. [section] 24, [paragraph] 2.

(27) See generally Bundesgesetz gegen Kartelle und andere Wettbewerbsbeschrankungen [Kartellgesetz 2005] [Austrian Cartel Act] BUNDESGESETZBLATT [BGBL I] No. 61/2005 (failing to provide a deadline for submitting a merger notification).

(28) ACA [section] 11, [paragraph] 1.

(29) Bundesgesetz uber die Einrichtung einer Bundeswettbewerbsbehorde [Wettbewerbsgesetz 2002] [Austrian Federal Act Establishing the Federal Competition Authority] BUNDESGESETZBLATT [BGBL I] No. 62/2002 [section] 10a, [paragraph] 2.

(30) ACA[section] 11, [paragraph] 1.

(31) Id. [section] 17, [paragraph] 1. See also REIDLINGER & HARTUNG, supra note 21, at 216.

(32) ACA [section] 11, [paragraph] 1. As of March 1, 2013, parties can apply for an extension of the relevant deadlines in Phase I (by two weeks) and Phase II (by one month). Id. The legislative materials suggest that an extension in the course of Phase I proceedings should help to prevent situations in which the AFCA applies for an in-depth investigation without reasonable substantive concerns simply to comply with the four-week review period. The Phase II extension is intended for remedy negotiations. Preliminary remarks Attachment 1804 XXIV. GP, at 8, available at http://www.parlament.gv.at/PAKT/VHG/XXIV /I/I_01804/fname_255446.pdf.

(33) ACA [section] 17, [paragraph] 1.

(34) Id. [section] 11, [paragraph] 4. See, e.g., ACA, RTL Interactive GmbH; Venture Group Beteiligungs Invest MF-AG; Starbet Holding AG, BWB/Z-17 (Jan, 24, 2006), available at http://www.en.bwb.gv.at/MergerControl/MergerControl_2006/ Seiten/BWB2fZ-17.aspx (both the AFCA and AFCP waived their respective rights to refer the transaction to the Cartel Court, thus bringing the standstill obligation to an end ten days prior to expiration of the deadline).

(35) ACA [section] 10, [paragraph] 4. See also Bundeswettbewerbsbehorde, Granting a Waiver, http://www.bwb.gv.at/Fachinformationen/Standpunkte/Seiten/ AbgabevonPrufungsverzichten.aspx (last visited May 3, 2013).

(36) Bundesgesetz uber die Einrichtung einer Bundeswettbewerbsbehorde [Wettbewerbsgesetz 2002] [Austrian Federal Act Establishing the Federal Competition Authority] BUNDESGESETZBLATT [BGBL I] No. 62/2002 [section] 11, [paragraph] 1; [section] 10a, [paragraph] 2. See also Anita Lukaschek, KartG [section] 11, in ALEXANDER PETSCHE, FRANZ URLESBERGER & CLAUDINE VARTIAN, KARTELLGESETZ 2005, at [section] 11, [paragraph] 6 (2007).

(37) ACA [section] 14, [paragraph] 1.

(38) Id. [section] 12, [paragraph] 1(2)-(3). The Cartel Court may also declare that no concentration exists. Id. [section] 12, [paragraph] 1(1).

(39) Id. [section] 14, [paragraph] 1.

(40) Id.

(41) Id. [section] 47, [paragraph] 1.

(42) Id.

(43) Id. [section] 15; FCAA [section] 10b, [paragraph] 1.

(44) ACA [section] 49, [paragraph] 2.

(45) Id.

(46) Id. [section] 14, [paragraph] 2.

(47) Id. [section][section] 4 & 12. An enterprise is market-dominant if (1) it has no or insignificant competition, or has, in relation to the other competitors, a superior position in the market, particularly in relation to financial strength, relations with other enterprises, access to procurement and sales markets, as well as circumstances limiting market access for other enterprises; or (2) within a relevant geographic market, it holds a market share of: (a) at least thirty percent; or (b) over five percent where there are no more than two other market participants. Id. [section] 4, [paragraph][paragraph] 1-2. An enterprise shall also be deemed market dominant if it has, in relation to its customers or suppliers, a superior position in the market, particularly if the latter are dependent on the maintenance of the business relationship if they are to avoid severe business disadvantage. Id. [section] 4, [paragraph] 3. A rebuttable presumption of dominance arises where an enterprise holds a market share of over five percent and is one of four enterprises in the relevant market that hold a combined share of not less than eight percent. Id. [section] 4, [paragraph] 1.

(48) Id. [section] 12, [paragraph] 2.

(49) ORG. FOR ECON. CO-OPERATION & Dev. (OECD), POLICY ROUNDTABLES, REMEDIES IN MERGER CASES 45 (2011), available at http://www.oecd.org/daf/competition /RemediesinMergerCases2011.pdf [hereinafter OECD REMEDIES REPORT].

(50) ACA [section] 14.

(51) Id. [section] 12, [paragraph] 3.

(52) Id. [section] 17, [paragraph] 2. See also OECD, supra note 49, at 45.

(53) Id. [section] 26 (requiring the Cartel Court to bring infringements of the ACA to an end and providing only that the Cartel Court shall give the "necessary orders" to do so).

(54) OECD, supra note 49, at 46-47 (noting that although structural remedies are preferable because they require no ongoing monitoring (whereas certain behavioral remedies either cannot be monitored without a dawn raid or monitoring is very cumbersome, effectively requiring a sector inquiry), a study on compliance and effectiveness found that the majority of remedies imposed are behavioral).

(55) See generally ACA (providing no general right of intervention to third parties).

(56) ACA [section] 10, [paragraph] 3; FCAA [section] 10b, [paragraph] 1. See also AFCA, Formblatt fur die Anmeldung von Zusammenschlussen [Merger Notification Form], available at http://www.bwb.gv.at / Zusammenschluesse / Seiten / default.aspx#Formblatt (in German).

(57) ACA [section] 10, [paragraph] 4.

(58) Id.

(59) Id. [section] 36, [paragraph] 2.

(60) Id. [section] 11, [paragraph] 2; FCAA [section] 10b, [paragraph] 1.

(61) ACA [section] 11, [paragraph] 3.

(62) Id.

(63) Id. [section] 39, [paragraph] 2.

(64) Explanatory notes to the Austrian Cartel Act 2005, 926 BlgNR 22. GP, available at http://www.parlarnent.gv.at/PAKT/VHG/XXII/I/I_00926 /fname_040340.pdf. See also REIDLINGER & HARTUNG, supra note 21, at 258.

(65) ACA [section] 15; FCAA [section] 10b, [paragraph] 1.

(66) ACA [section] 36, [paragraph] 4; Franz Urlesberger, ACA [section] 18, in PETSCHE, URLESBERGER & MARTIAN, supra note 36, [section] 18, [paragraph] 27.

(67) ACA [section] 16, [paragraph] 1, Lukaschek, supra note 36, [section] 16, [paragraph] 11; Alfred Mair, ACA [section] 16, in PETSCHE, URLESBERGER & VARTIAN, supra note 36, [section] 36, [paragraph] 33.

(68) ACA [section] 16, [paragraph] 2; Mair, supra note 67. On the relationship between the ACA's sections 16 no. 2 and 17 paragraph 2, see Lukaschek, supra note 36, [section] 16, [paragraph] 8.

(69) FCAA [section] 1, [paragraph] 1b.

(70) ACA [section] 46.

(71) Id. [section][section] 45-46.

(72) Decreto-Ley No. 211 de 1973 sobre la Proteccion de la Libre Competencia [Chilean Antitrust Law] (CAL), Decree Law No. 211/1973, available at http://www.fne.gob.cl/wp-content/uploads/2012/03/DL_211_ingles.pdf (unofficial translation).

(73) CAL art. 2.

(74) Id. art. 3.

(75) ORG. FOR ECON. CO-OPERATION & DEV., CHILE--ACCESSION REPORT ON COMPETITION LAW AND POLICY 49 (2010), available at http://www.economia. gob.cl/wp-content/uploads/2012/01/Informe-OECD-2010-Chile.pdf [hereinafter CHILE OECD REPORT].

(76) See, e.g., Requerimiento de la FNE c. Hoyts Cinemas Chile y Otros., Rol C 240-12 (June 28, 2012), available at http://www.tdlc.cl/Portal.Base/Web /VerContenido.aspx?ID=3157. That process concluded with a settlement between the FNE and the parties.

(77) CAL art. 33. The Prosecutor must hold a law degree and have at least ten years' professional experience or three years' working at the FNE. Id.

(78) Id. art. 39.

(79) See How We Work, FISCALIA NACIONAL ECONOMICA, http://www.fne.gob .cl/english/about-the-fne/how-we-work/(last visited May 3, 2013).

(80) CAL art. 5.

(81) Id.

(82) Id. art. 6. The chair of the TDLC is appointed by the President of Chile from five candidates chosen by the Supreme Court. The candidates must specialize in competition law or in commercial or economic law and have at least ten years of professional experience. Id. Of the remaining four members, two are appointed by the Central Bank, subject to a public selection process, and two are appointed by the President of Chile from six nominations selected by the Central Bank, also subject to a public selection process. Id. The TDLC also includes two alternate members, one of whom is an attorney and one of whom is an economist. Id.

(83) Id. art. 18(2).

(84) Id. art. 18(1), (2).

(85) The TDLC is not bound by the recommendations of the FNE. However, if the merging parties agree in writing with the FNE recommendations, the duration of the nonadversarial review process may be reduced.

(86) CAL art. 18(2).

(87) Id. art. 39(b) (providing that the National Economic Prosecutor has the power and duty to represent the general interest of the collective economic order before the TDLC).

(88) Id. art. 31(1).

(89) Id. art. 31(3).

(90) Id.

(91) Id. art. 18(2); art. 31. The CAL expressly grants to the TDLC jurisdiction over acts and contracts and the power to impose conditions on them. Id. However, the TDLC takes the view that it may also prohibit a transaction and has done so in two cases. See D&S & Falabella, TDLC Resolution No. 24/2008 (Jan. 31, 2008); Quinenco S.A. & Operaciones y Servicios Terpel Limitada, TDLC Resolution No. 39/2012 (Apr. 24, 2012) (overturned by the Supreme Court). See also CHILE OECD REPORT, supra note 75, at 33.

(92) Auto Acordado No. 5/2004, art. 3, available at http://www.tdlc.cl /DocumentosMultiples/Autoacordado_N_5-2004.pdf. See, e.g., LAN Airlines SA & TAM Linhas Aereas SA, TDLC Case No. NC 388-11 (procedural resolution of Jan. 28, 2011).

(93) Auto Acordado, art. 3.

(94) CAL art. 18(1).

(95) Id. art. 20.

(96) Id.

(97) Id.

(98) Id.

(99) Id.

(100) Id. art. 26.

(101) Id. art. 31.

(102) Id. art. 27.

(103) Id. art. 4.

(104) See, e.g., Telefonica M6viles SA/BellSouth Chile Inc. & BellSouth Chile Holdings Inc., TDLC Resolution No. 02/2005.

(105) CAL art. 31(2) (providing that the parties may evaluate and inform the TDLC of their agreement to the FNE's recommendations).

(106) Id.

(107) Id. art. 31(3).

(108) Conedecus, LAN Airlines SA y TAM Linhas Aereas SA, TDLC Case No. NC 388-11 (2011). The TDLC also considered the fact that a third party had initiated prior proceedings in respect of the transaction.

(109) CAL art. 18(2).

(110) Telefonica Moviles SA/BellSouth Chile Inc. & BellSouth Chile Holdings Inc., TDLC Resolution No. 02/2005.

(111) CONSTITUCION POLITICA DE LA REPUBLICA DE CHILE [C.P.] art. 8. Information in the hands of government agencies may be disclosed, provided that a private party must have the opportunity first to object to the disclosure of confidential information. Thus, confidential information obtained from a private party cannot be disclosed without giving that party the opportunity to object. Law No. 20285, Julio 11, 2008, DIARIO OFICIAL [D.O.] (Chile), arts. 10-30.

(112) CAL art. 42.

(113) Id. art. 39(a).

(114) Id.

(115) Id.

(116) Id. art. 41.

(117) Id. arts. 18(2) & 31. See also Constructora e Immobiliaria Independicia c. Almecenes Paris y Falabella, Case No. C 79-05, TDLC Decision 85/2009.

(118) CAL art. 31(3).

(119) Id.

(120) Id. art. 31(5).

(121) Id. art. 18(2).

(122) Id. art. 31(1).

(123) Decision No. 98, Case No. C 168-08 (Mar. 18, 2010), aff'd, Corte Supreme de Justicia [C.S.J.] [Supreme Court] 22 septiembre 2010, Fundacion Chile Ciudadano y Otro c. VTR BA Chile SA, Rol de las causa: 2680, available at http://www.tdlc.cl/Portal.Base/Web/VerContenido.aspx?ID=2339&GUID=>.

(124) Conedecus, LAN Airlines S.A. & TAM Linhas Aeras S.A., TDLC, Case NC 388-11 (2011). The settlement agreement was dismissed in part because the TDLC found that the FNE did not have the power to enter into such agreements in a CAL article 39 n process and in part because the TDLC found that a third party had initiated prior proceedings with respect to the transaction.

(125) CAL arts. 18(2) & 31. See also supra note 91.

(126) CAL arts. 26 & 30.

(127) Competition Act No. 948/2011 (Nov. 1, 2011), available at http://www .kilpailuvirasto.fi/cgi-bin/english.cgi?luku=legislation&sivu=competition-act.

(128) The Finnish Competition Authority (FCA) and the Finnish Consumer Agency were merged into the newly created Finnish Competition and Consumer Authority (FCCA) on January 1, 2013. According to the FCCA, the aim of the merger is to increase the societal significance of competition and consumer issues and to improve administrative efficiency. The statutory tasks of the merged agency remain unchanged in the reform. See Press Release, Finnish Competition & Consumer Auth., The Finnish Competition and Consumer Authority Commenced Operations (Jan. 1, 2013), available at http://www.kkv.fi/Page/5abb4555-6445-4e0a-8011-e7efd59ef6d3.aspx ?groupId=8b466af6-1441-4cdc-907d-fc93cca74ac9&announcementId =b8c2144f-4007-4bd0-80ce-50dlebcb6af5.

(129) Act on the Finnish Competition and Consumer Authority (FCCA) (661/2012) [section][section] 1-2, available at http://www.finlex.fi/fi/laki/alkup/2012 /20120661 (in Finnish).

(130) Competition Act [section] 26(1)-(2).

(131) Id.

(132) Id. [section] 29(1).

(133) d.. [section] 25(1).

(134) Id.

(135) Id. (providing that the Market Court may prohibit a transaction). The Supreme Administrative Court may also prohibit a transaction.

(136) Act on the Finnish Competition and Consumer Authority (FCCA) (661/2012) [section] 3(1), available at http://www.finlex.fi/fi/laki/alkup/2012 /20120661 (in Finnish).

(137) Id.[section] 3(2).

(138) Market Court Act (1527/2001), [section] 2(2), available at http://www .kilpailuvirasto.fi/cgi-bin/english.cgi?luku=legislation&sivu=act-on-the -market-court.

(139) Id. [section][section] 2(1) & 4.

(140) Competition Act No. 948/2011 [section] 44(1) (Nov. 1, 2011), available at http:/ /www.kilpailuvirasto.fi/cgi-bin/english.cgi?luku=legislation&sivu =competition-act; Administrative Judicial Procedure Act (AJPA) (586/1996) [section] 22, available at http://www.finlex.fi/fi/laki/kaannokset/1996/en19960586 .pdf (amendments up to June 6, 2003, included in the English translation).

(141) Competition Act [section] 44(2); AJPA[section] 22.

(142) Competition Act [section][section] 23(1) & 27(1). The suspensory obligation does not apply to public bids, mandatory bids, or redemption of shares. Id. [section] 27(2).

(143) Id. [section][section] 23(1) & 27(1).

(144) Id.[section] 29(2).

(145) Id.

(146) Id. [section] 27(1) (providing for suspension unless the transaction is cleared conditionally or unconditionally or implementation is permitted on the basis of some "other approval").

(147) Id. [section] 30(2).

(148) Id. [section][section] 12, 13 & 28.

(149) Id. [section] 21(1). Under the Competition Act, as a general rule the following are deemed to constitute a "concentration": (1) the acquisition of control of an undertaking; (2) the acquisition of the whole or part of the business of an undertaking; (3) a merger; and (4) the creation of a joint venture performing all the functions of an autonomous economic entity on a lasting basis. Id.

(150) Id. [section] 22(1). Under the Competition Act, as a general rule a concentration is notifiable if (1) the parties involved achieved a combined turnover of more than 350 million [euro] worldwide; and (2) each of at least two parties achieved a turnover in or into Finland of more than 20 million [euro]. Specific rules and exemptions may apply, for example, in the context of intragroup transactions. See id. [section] 21(2).

(151) See generally Competition Act (failing to provide a deadline to file). Notification must be submitted to the FCCA following the conclusion of the acquisition agreement, the acquisition of control, or the announcement of the public bid, but prior to the implementation of the concentration. Id. [section] 23(1). A concentration may also be notified to the FCCA as soon as the parties demonstrate with sufficient certainty their intention to conclude a concentration, such as by a letter of intent or a memorandum of understanding signed by all parties to the concentration or by a public announcement of the intention to make a public bid. Id. See also FINNISH COMPETITION AUTHORITY, FINNISH COMPETITION AUTHORITY (FCA) GUIDELINES ON MERGER CONTROL 43 (2011), available at http://www.kilpailuvirasto.fi/tiedostot/Suuntaviivat-l-2011- Yrityskauppavalvonta-EN.pdf [hereinafter FINNISH MERGER GUIDELINES].

(152) Competition Act [section] 26(1).

(153) Id. [section] 26(1)-(2).

(154) Id.[section] 25(1).

(155) Id. [section] 26(1).

(156) Id.

(157) GLOBAL COMPETITION REV., GETTING THE DEAL THROUGH: MERGER CONTROL 2013 126 (2013). In 2011, of the forty-two merger notifications submitted to the FCA, only two resulted in Phase II proceedings, one of which involved a proposal to prohibit the acquisition of Destia Oy's asphalt paving business by NCC Roads Oy. NCC Roads Oy/Destia Oy, Case No. 249/14.00.10/2011. See FINNISH COMPETITION AUTH., VIEW-POINTS: FCA's YEARBOOK 2012, at 8, 10-11 (2012), available at http://www.kilpailuvirasto.fi/tiedostot/vuosikirja-2012-englanti.pdf.

(158) Competition Act [section] 26(2).

(159) Id.

(160) FINNISH MERGER GUIDELINES, supra note 151, at 46. See, e.g., Press Release, FCA, Lehdistotiedote: MTV/Canal+ -kaupan kasittelyaikaa pidennettiin kahdella viikolla (Nov. 7, 2008), http://www.kilpailuvirasto.fi/cgibin/suomi.cgi?luku=tiedotteet&sivu=tied/t-2008-20 (in Finnish); Press Release, FCA, Canal+ -kaupan kasittelyaikaa jatkettiin torstaihin 27.11.2008 asti (Nov. 24, 2008), http://www.kilpailuvirasto.fi/cgi-bin/suomi.cgi?luku=tiedotteet&sivu =tied/t-2008-21 (in Finnish) (two extensions granted in TV4/Canal+ to allow the FCA time to evaluate commitments); and Press Release, FCA, Uponorin ja KWH:n valisen yrityskaupan kasittelyaikaa pidennettiin kuukaudella (Dec. 21, 2012), http://www.kilpailuvirasto.fi/cgi-bin/suomi.cgi?luku=tiedotteet& sivu=tied/t-2012-30) (in Finnish) (in which an extension was granted in Uponor Oyj/KWH-Yhtyma Oy to enable the FCA to evaluate additional markets).

(161) FINNISH MERGER GUIDELINES, supra note 151, at 46.

(162) Id. at 9.

(163) Competition Act [section] 25(1).

(164) Id. [section] 25(3); see also FINNISH MERGER GUIDELINES, supra note 151, at 10.

(165) Competition Act [section] 29(1).

(166) Id.[section] 42(2).

(167) Id. [section] 42(3).

(168) Id.

(169) Finnish Market Court Act [section] 9(2) (referring to Finnish Market Court Act [section] 1(1)(1)). One Judge constitutes a quorum if the relevant application has been withdrawn or if the case is ruled inadmissible or dismissed without prejudice, or for decisions on interim injunctions and preparatory measures. In the latter context and if justified by a special reason, the Finnish Market Court may comprise up to two other Judges. Id. [section] 9(1). If there is established case law pertaining to the case at hand, two Judges and up to two expert members constitute a quorum. Id. [section] 9(3).

(170) Id. [section] 10. The Chief Judge may refer a case to a reinforced hearing if the case addresses significant principles of law or if the ruling would deviate from earlier case law. A reinforced hearing is presided over by the Finish Market Court Judges and expert members who participated in the earlier hearing, together with additional Finnish Market Court Judges and expert members as appointed by the Chief Judge. Id. [section] 11.

(171) See Competition Cases, THE MARKET COURT, http://www.oikeus.fi /markkinaoikeus/20312.htm.

(172) See id.

(173) Competition Act No. 948/2011 [section] 44(1) (Nov. 1, 2011), available at http://www.kilpailuvirasto.fi/cgi-bin/english.cgi?luku=legislation&sivu =competition-act; Administrative Judicial Procedure Act (AJPA) (586/1996) [section] 22, available at http://www.finlex.fi/fi/laki/kaannokset/1996/en19960586 .pdf (amendments up to June 6, 2003, included in the English translation).

(174) Competition Act [section] 44(1).

(175) Id. For earlier status, see Act on Competition Restrictions (480/1992), as amended, [section] 11d(3) (providing that the FCA may impose conditions on a transaction) and [section] 21(1) (not carving out [section] 11d(3) from the parties' right of appeal), available at http://www.kilpailuvirasto.fi/cgi-bin/english.cgi? luku=legislation&sivu=act-on-competition-restrictions-amended.

(176) Competition Act [section] 25(3).

(177) FINNISH COMPETITION AUTH., supra note 157, at 38.

(178) Competition Act [section] 44(2); AJPA [section] 22.

(179) Competition Act [section] 44(1). See also supra note 174 and accompanying text.

(180) Competiton Act [section] 44(2); see also AJPA [section][section] 31(1)-(2), 32(1).

(181) AJPA [section] 34(1).

(182) Id. [section] 34(2).

(183) Id. [section][section] 37(1), 38(1), 39(1) & 40(1). An interested private party is one whose rights, obligations, or interests are directly affected by the case, which has been narrowly interpreted by the courts, as has the right to appeal. See infra notes 227-28 and accompanying text.

(184) AJPA [section] 52(1). The chairman has the deciding vote in the event of a tie. Id. [section] 52(2).

(185) Id. [section] 59(1).

(186) Id. [section] 60(2).

(187) Competition Act No. 948/2011 [section] 25(1) (Nov. 1, 2011), available at http://www.kilpailuvirasto.fi/cgi-bin/english.cgi?luku=legislation&sivu =competition-act. Specific rules apply in the case of the electricity market, which is not addressed further in this article. Id. [section] 25(2).

(188) Id. [section] 25(3).

(189) FINNISH MERGER GUIDELINES, supra note 151, at 11.

(190) Id. at 11.

(191) Id. at 95.

(192) See, e.g., Press Release, FCCA, FCA Clears TV4/Canal+ Merger, Subject to Conditions (Nov. 27, 2008), available at http://www.kilpailuvirasto.fi /cgi-bin/english.cgi?luku=news-archive&sivu=news/n-2008-11-27; and Press Release, FCCA, FCA Approves Merger Between Terveystalo and Oulun Diakonissalaitos, Subject to Conditions (May 11, 2011), available at http://www.kilpailuvirasto.fi/cgi-bin/english.cgi?luku=news-archive &sivu=news/n-2011-05-11.

(193) In Sonera plc/Yleisradio Oy/Digita Oy, Case No. 1010/81/1999, despite conducting remedy negotiations with the parties, the FCA found that the parties' proposals failed to address several of the competition concerns raised by the transaction and as a result referred the transaction to the Market Court for prohibition. The Market Court approved the transaction based on stricter conditions than those offered by the parties. Sonera, Case No. 53/690/2000. As a result, the parties did not proceed with the transaction. See FINNISH COMPETITION AUTH., YEARBOOK 2001, at 32-34 (2001), available at http://www.kilpailuvirasto0 .fi/tiedostot/vuosikirja-2001-englanti.pdf.

In its review of NCC Roads Oy's acquisition of the asphalt paving business of Destia Oy and Destia Kalusto Oy, Case No. 249/14.00.10/2011, the FCA found that the commitments offered by the parties were insufficient to resolve the competition concerns resulting from the transaction. The FCA therefore referred the case to the Market Court, which affirmed the FCA's position and approved the transaction with stricter conditions than those offered by the parties. Case No. 253/11/KR, Decision 499/11 (Nov. 2, 2011). The parties subsequently withdrew their merger notification, restructured the deal to resolve the competition concerns raised by the FCA and Market Court and resubmitted the transaction for merger review. The transaction was approved by the FCA on this basis. See FINNISH COMPETITION AUTH., supra note 157, at 27; see also Press Release, FCCA, Acquisition of Destia by NCC Approved in its New Form (Nov. 24, 2011), available at http://www.kilpailuvirasto.fi/cgi-bin /english.cgi?luku=news-archive&sivu=news/n-2011-11-24.

(194) FINNISH MERGER GUIDELINES, supra note 151, at 95.

(195) OECD REMEDIES REPORT, supra note 49, at 67. The FCA has indicated that in the telecom sector behavioral remedies are unlikely to be accepted. See id. at 68 (discussing Elisa/Saunalahti, a horizontal merger between two telecom operators in which the FCA stated that infrastructure plays a significant role in the telecom sector and therefore the transaction could not be approved without structural remedies).

(196) FINNISH MERGER GUIDELINES, supra note 151, at 95.

(197) Id.

(198) Id.

(199) Competition Act No. 948/2011 [section] 25(1) (Nov. 1, 2011), available at http://www .kilpailuvirasto.fi/cgi-bin/english.cgi?luku=legislation&sivu=competition-act.

(200) See generally Competition Act (failing to provide that the parties must approve conditions imposed by the Market Court). See also supra note 193.

(201) FINNISH MERGER GUIDELINES, supra note 151, at 95.

(202) OECD REMEDIES REPORT, supra note 49, at 67.

(203) Id.

(204) Id.

(205) FINNISH MERGER GUIDELINES, supra note 151, at 10, 95.

(206) OECD REMEDIES REPORT, supra note 49, at 67.

(207) FINNISH MERGER GUIDELINES, supra note 151, at 10-11.

(208) OECD REMEDIES REPORT, supra note 49, at 71.

(209) Id.

(210) FINNISH MERGER GUIDELINES, supra note 151, at 11, 95.

(211) Id. at 95.

(212) Id. at 10.

(213) Id. at 97.

(214) Competition Act No. 948/2011 [section] 28 (Nov. 1, 2011), available at http://www.kilpailuvirasto, fi/cgi-bin/english.cgi?luku=legislation&sivu=competition-act.

(215) Id. [section] 30.

(216) FINNISH MERGER GUIDELINES, supra note 151, at 98.

(217) Government Bill on the Competition Act [section] 23 (HE 88/2010) ; see also FINNISH MERGER GUIDELINES, supra note 151, at 43.

(218) Act on the Openness of Government Activities (FOGA) [section][section] 1(1), 5(2) (621/1999), unofficial translation available at http://www.finlex.fi/en/laki /kaannokset/1999/en19990621.pdf (amendments up to Dec. 11, 2002 included in the English translation).

(219) Id. [section][section] 7(1) & 9(1).

(220) Id. [section] 10.

(221) Id. [section] 24(20).

(222) FINNISH MERGER GUIDELINES, supra note 151, at 11-12.

(223) GLOBAL COMPETITION REV., supra note 157, at 127.

(224) OECD REMEDIES REPORT, supra note 49, at 71.

(225) See supra note 162 and accompanying text.

(226) FINNISH MERGER GUIDELINES, supra note 151, at 96.

(227) Administrative Judicial Procedure Act (AJPA) (586/1996) [section] 6, available at http://www.finlex.fi/fi/laki/kaannokset/1996/en19960586.pdf (amendments up to June 6, 2003, included in the English translation). Certain FCCA decisions may not be appealed. See supra notes 179-180 and accompanying text.

(228) See, e.g., Suomen Osuuskauppojen Keskuskunta/Suomen Spar Oyj, Case No. 70/06/KR, Market Court Decision 216/06 (Oct. 11, 2006); Nor-Ferris AS, Case No. 240/06/KR, Market Court Decision 92/07 (Mar. 16, 2007); Sonera Oyj/Loimaan Seudun Puhelin Oy, Case No. 224/2/02, Supreme Administrative Court Decision 2002:50 (July 4, 2002).

(229) Commerce Act 1986 (N.Z.), available at http://www.legislation. govt.nz/act/public/1986/0005/latest/DLM87623.html.

(230) Id. [section] 8; see also COMMERCE COMM'N N.Z., MERGERS AND ACQUISITIONS GUIDELINES 5 (2003), available at http://www.comcom.govt.nz/assets/Imported -from-old-site/BusinessCompetition/MergersAcquisitions/ClearanceProcessGuidelines ContentFiles/Documents/Mergers-and-AcquisitionsGuidelines-2003.pdf [hereinafter NZ M&A GUIDELINES]. The NZCC has issued draft revised guidelines, on which it is currently conducting consultations. See COMMERCE COMM'N N.Z., MERGERS AND ACQUISITIONS GUIDELINES, DRAFT FOR CONSULTATION 35-45 (2013), available at http://www.comcom.govt.nz/assets/BusinessCompetition/Mergers-and-Acquisitions /Commerce-Commission-draft-Mergers-and-Acqusitions-Guidelines-for-consultation-08-March-2013.pdf.

(231) Commerce Act [section][section] 66 & 67.

(232) Id. [section][section] 66(3)(a) & 67(3)(a). A transaction will be prohibited if it "would have, or would be likely to have, the effect of substantially lessening competition in a market." Id. [section] 47.

(233) Id. [section] 67(3)(b). See also NZ M&A GUIDELINES, supra note 230, at 5. When considering an application for authorization, the NZCC considers public benefits to New Zealand, with an emphasis on economic efficiencies. See COMMERCE COMM'N N.Z., STREAMLINED AUTHORISATION PROCESS GUIDELINES [paragraph][paragraph] 2.3 & 2.11 (2009), available at http://www.comcom.govt.nz/assets/Business-Competition /Mergers-and-Acquisitions/Streamlined-AuthorisationProcessGuidelines-May-2009.pdf [hereinafter NZ AUTHORISATION GUIDELINES]. The High Court has recently confirmed that the NZCC is not required to "overlay some kind of social policy judgment" in evaluating efficiencies. Godfrey Hirst NZ Ltd v Commerce Comm'n (2011) 9 N.Z. Bus. L. CASES 103, 396.

(234) Commerce Act [section] 69A(3); see also NZ M&A GUIDELINES, supra note 230, at 6.

(235) Commerce Act [section][section] 47 & 84. The NZCC may also issue a "cease and desist" order. For further details, see infra notes 268-70 and accompanying text.

(236) NZ M&A GUIDELINES, supra note 230, at 6.

(237) Commerce Act [section] 91; NZ M&A GUIDELINES, supra note 230, at 6. See also COMMERCE COMM'N N.Z., MERGERS AND ACQUISITIONS CLEARANCE PROCESS GUIDELINES [paragraph] 7.70 (2010), available at http://www.comcom.govt.nz/assets /Business-Competition/Mergers-and-Acquisitions/Mergers-and-Acquisitions -Clearance-Process-Guidelines-14-July-2010.pdf [hereinafter NZ CLEARANCE GUIDELINES]; NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph] 5.68.

(238) Commerce Act [section] 97(1).

(239) Supreme Court Act 2003 [section] 12 (N.Z.).

(240) Commerce Act [section] 9(1)-(4). Between three and five of the members must be appointed by the Governor-General, and one of the members must be appointed by the Governor-General as Telecommunications Commissioner. The members are recommended by the Minister of Commerce (in the case of any member who is a barrister or solicitor, after prior consultation with the Attorney General). Id. [section] 9(2)-(4).

(241) Id. [section][section] 11(1) & (3).

(242) Id. [section] 74AA(1).

(243) See generally Commerce Act (lacking a mandatory obligation to notify and mandatory asset or turnover thresholds).

(244) NZ M&A GUIDELINES, supra note 230, at 6; NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph] 2.14.

(245) See infra notes 268-72 and accompanying text for further details.

(246) Commerce Act [section][section] 66 & 67.

(247) Id. [section][section] 4(1) & 4(3).

(248) The Commerce (Cartels and Other Matters) Amendment Bill is expected to enter into force in 2013. See New Zealand Parliament, Parliamentary Business, Legislation, Bills, http://www.parliament.nz/en-NZ/PB /Legislation/Bills/a/d/00DBHOH_BILL11153_1-Commerce-Cartels-and -Other-Matters-Amendment-Bill.htm. The bill proposes a process for the NZCC to seek remedies in respect of business acquisitions by "overseas persons." If an overseas person acquires a "controlling interest" in a New Zealand company (in essence a greater than fifty percent interest in shares, or ability to control the board), the NZCC may apply to the High Court for a declaration that the acquisition will substantially lessen competition in a market in New Zealand. If the High Court makes such a declaration, it may make an order requiring the New Zealand company to (1) cease carrying on business in the relevant market in New Zealand; (2) dispose of specified shares or assets; or (3) take any other action that the High Court considers to be consistent with the NZCA. Failure to comply with the declaration will be subject to the same penalties as for a breach of the merger control provision (but the penalties will be enforceable against the New Zealand company, rather than the overseas acquirer).

(249) See Commerce Comm'n v British Am. Tobacco Holdings (N.Z.) Ltd. (2001) 10 TCLR 320.

(250) NZ CLEARANCE GUIDELINES, supra note 237, [paragraph] 7.07. The NZCC's objective is to publish a Statement of Preliminary Issues within fifteen days of notification, followed by either clearance or the issuance of a Letter of Issues highlighting its initial concerns twenty-five days from notification. Id. Technically, the NZCC must notify the applicant within ten business days of the application that it has cleared or failed to clear the transaction; if it fails to do so, clearance is deemed denied. Commerce Act [section] 66(3)-(4). In the event that a transaction raises complex issues, the NZCC may publish the Statement of Preliminary Issues up to twenty-five business days from the date of application. NZ CLEARANCE GUIDELINES, supra note 237, [paragraph] 7.52.

(251) Commerce Act [section] 66(3)(a); NZ CLEARANCE GUIDELINES, supra note 237, [paragraph] 7.08. In this case, the NZCC will both send a Letter of Unresolved Issues to the parties and seek an extension within forty business days from the application. Id.

(252) Commerce Act [section] 67(4).

(253) NZ CLEARANCE GUIDELINES, supra note 237, [paragraph][paragraph] 7.07 & 7.10.

(254) Commerce Act [section] 66(3)(a). The NZCC must reach a decision within sixty business days or such longer period as the parties agree. In the event that the NZCC does not render a decision within this time period, the application for authorization is deemed denied. Id. [section] 67(4). See also Qantas Airways Ltd. & Air New Zealand Ltd., NZCC Final Determination (Oct. 23, 2003) (application for authorization registered Dec. 9, 2002 and declined Sept. 30, 2003), available at http://www.comcom.govt.nz/assets/Imported-from-old-site/ BusinessCompetition/Anti-competitivePractices/Applications/ContentFiles /Documents/comcom-qantasairnzalliancefinaldetermination.pdf.

(255) Only sixteen applications for authorization have been made since the Commerce Act entered into force in 1986, and, prior to the entry into force of the NZ Authorization Guidelines, no application had been made since 2002. See Authorisations Register, NZ COMMERCE COMM'N, http://www.comcom .govt.nz/authorisations-register/. For comparison with clearance decisions, see Clearances Register, NZ COMMERCE COMM'N, http://www.comcom.govt.nz/clearances-register/.

(256) See supra note 233.

(257) NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph] 1.3.

(258) Id. The NZCC aims to issue a draft determination within twenty business days of the application. Id.

(259) Commerce Act 1986 [section] 66(3)(a) (N.Z.), available at http://www.legislation.govt.nz/act/public/1986/0005/latest/DLM87623.html; NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph] 5.9.

(260) Commerce Act [section] 67(4).

(261) NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph][paragraph] 1.7 & 5.8. To date, the NZCC has considered only one application under the NZ Authorisation Guidelines and reached its decision to authorize the transaction within forty-five working days. See S. Cross Hosps. Ltd. & Aorangi Hosp. Ltd., NZCC Decision 729 (July 28, 2011), available at http://www.comcom.govt.nz/assets /Business-Competition/Mergers-and-Acquisitions/Southern-Cross-and -Aorangi/Southern-Cross-Hospitals-Ltd-and-Aorangi-Hospital-Ltd-Decision729-28-July-2011.pdf.

(262) NZ CLEARANCE GUIDELINES, supra note 237, [paragraph][paragraph] 7.63 & 7.66; NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph][paragraph] 5.60 & 5.64.

(263) Commerce Act [section] 91(1)-(2).

(264) NZ CLEARANCE GUIDELINES, supra note 237, [paragraph] 7.70; NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph] 5.68.

(265) Commerce Act [section] 93.

(266) Id. [section] 94.

(267) Id. [section] 95.

(268) Id. [section][section] 74A(1), 83(1).

(269) Id. [section] 74A(2)-(3).

(270) Id. [section][section] 74B-74C.

(271) Id. [section] 83.

(272) Id. [section] 84.

(273) Id. [section] 85.

(274) Id. [section] 83.

(275) Id. [section] 47.

(276) Id. [section] 69.

(277) Id. [section] 69A(1)-(2). See also NZ CLEARANCE GUIDELINES, supra note 237, [paragraph] 7.61.

(278) Commerce Act [section] 69A(1).

(279) See COMMERCE COMM'N N.Z., MERGERS AND ACQUISITIONS: DIVESTMENT REMEDIES GUIDELINES [paragraph] 3.03 (2010), available at http://www.comcom.govt.nz/ assets/Business-Competition/Mergers-and-Acquisitions/ Mergers-and-Acquisitions-Divestment-Remedies-Guidelines-June-2010.pdf [hereinafter NZ DIVESTMENT GUIDELINES].

(280) OECD REMEDIES REPORT, supra note 49, at 158.

(281) NZ DIVESTMENT GUIDELINES, supra note 279, [paragraph] 3.08.

(282) Id.

(283) Id. [paragraph] 3.06.

(284) Commerce Act 1986 [section] 69AB (N.Z.), available at http://www.legislation govt.nz/act/public/1986/0005/latest/DLM87623.html. See also NZ DIVESTMENT GUIDELINES, supra note 279, [paragraph] 2.07.

(285) Commerce Act [section] 84(2). Such an injunction may restrain any person from contravening the undertakings, impose obligations on any person to safeguard any business or assets, or ensure that any business is carried on by appointing a trustee or any other measure necessary. Id.

(286) Id. [section] 85A.

(287) Id. [section] 85B.

(288) Id. [section] 85C. See also NZ DIVESTMENT GUIDELINES, supra note 279, [paragraph] 2.08.

(289) Commerce Comm'n v British Am. Tobacco Holdings (N.Z.) Ltd. (2001) 10 TRADE & COMPETITION L. REP. 320.

(290) Commerce Act [section] [section] 67(6) & 69. If an appeal is made against the NZCC's determination and the determination is confirmed by the court, the transaction cannot be challenged provided it is consummated within twelve months from the date of the court's judgment. Id. [section] 67(6).

(291) NZ M&A GUIDELINES, supra note 230, at 6.

(292) Commerce Act [section] 92(c)(iii).

(293) See supra note 248.

(294) NZ CLEARANCE GUIDELINES, supra note 237, [paragraph] 6.06; NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph] 5.8.

(295) NZ CLEARANCE GUIDELINES, supra note 237, [paragraph] 6.09; NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph][paragraph] 5.8 & 5.27.

(296) NZ CLEARANCE GUIDELINES, supra note 237, [paragraph][paragraph] 6.07 & 6.08. In the context of an application for authorization, such a request, if granted, will likely result in the transaction not being considered under the Streamlined Process. NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph][paragraph] 3.6 & 4.6.

(297) NZ CLEARANCE GUIDELINES, supra note 237, [paragraph] 7.53; NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph] 5.8.

(298) Official Information Act 1982 [section] 5, available at http://www.legislation .govt.nz/act/public/1982/0156/latest/DLM64785.html. See also NZ M&A PROCESS GUIDELINES, supra note 230, [paragraph] 7.37.

(299) Official Information Act [section] [section] 6, 9.

(300) Commerce Act 1986 [section] 68(5) (N.Z.), available at http://www.legislation govt.nz/act/public/1986/0005/latest/DLM87623.html.

(301) NZ CLEARANCE GUIDELINES, supra note 237, [paragraph] 7.19; NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph] 5.21.

(302) NZ CLEARANCE GUIDELINES, supra note 237, [paragraph][paragraph] 7.21-7.22; NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph][paragraph] 5.23-5.24.

(303) Commerce Act [section] 64(1)(b).

(304) NZ CLEARANCE GUIDELINES, supra note 237, [paragraph] 7.49; NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph] 5.56.

(305) OECD REMEDIES REPORT, supra note 49, at 161.

(306) Commerce Act [section] 92(c)(iii). See also NZ CLEARANCE GUIDELINES, supra note 237, [paragraph] 7.48; NZ AUTHORISATION GUIDELINES, supra note 233, [paragraph] 5.29.

(307) Commerce Act [section] 97(1).

(308) Godfrey Hirst NZ Ltd. v Commerce Comm'n (unreported) High Court, Wellington, CIV 2011-485-1257, 23 November 2011 (N.Z.).

(309) Swedish Competition Act (SFS 2008:579), available at http://www.kkv.se /upload/Filer/ENG/Publications/The_Swedish_Competition_Act.pdf.

(310) SWEDISH COMPETITION AUTH., TASKS AND ORGANISATION 3 (2013), available at http://www.kkv.se/upload/Filer/ENG/Publications/upporg_english.pdf [hereinafter SCA TASKS & ORGANISATION]

(311) 4 ch. 11 art. Swedish Competition Act (SFS 2008:579).

(312) Id. 4 ch. 13 & 15 arts.

(313) Id. 4 ch. 4 art.

(314) Id. 6 ch. 1(3) art. See, e.g., Arla Foods & Milko, Case Dnr 445/2011 (Oct. 24, 2011) (setting fines of SEK100 million). Prior to November 2008, the SCA was required to have recourse to the Stockholm District Court when making proposed remedies subject to a fine for noncompliance. See, e.g., Posten AB & Stralfors AB, Case Dnr 251/2006 (May 12, 2006) (proposing fines of SEK100 million); OneMed AB & Simonsen Material, Case Dnr 596/2008 (Oct. 30, 2008) (in which the SCA proposed a fine of SEK50 million but the Stockholm District Court set a fine of SEK30 million).

(315) 6 ch. 2 art. Swedish Competition Act (SFS 2008:579).

(316) Id. 7 ch. 2(1) art.

(317) Id. 4 ch. 10(2) art. (imposing an obligation to notify prior to implementation) & 12 art. (imposing a suspensory obligation).

(318) Id. 1. ch. 9 art. Under the SCL, a "concentration" occurs where (1) two or more previously independent undertakings merge or (2) one or more persons (already controlling at least one undertaking) or one or more undertakings, acquires direct or indirect control over the whole or parts of one or more undertakings.

(319) Id. 4 ch. 6 art. A concentration must be notified if (1) the combined aggregate turnover in Sweden of all the undertakings concerned in the preceding financial year exceeds SEK1 billion and (2) each of at least two of the undertakings concerned had a turnover in Sweden the preceding financial year that exceeds SEK200 million. If only the threshold in (1) above is met, but the threshold in (2) above is not met, the SCA may order that a transaction be notified or the parties may voluntarily notify the transaction to the SCA. Id. 4 ch. 7 art. See also Bonnierforlagen & Pocketgrossisten, Case Dnr 287/2010 (June 15, 2010) (in which the SCA ordered the parties to file a notification and subsequently cleared the merger without commitments in Phase I).

(320) 4 ch. 12 art. Swedish Competition Act (SFS 2008:579).

(321) Id. (limiting the application of the suspensory obligation to Phase I).

(322) Id. 4 ch. 17 art. See, e.g., Order of the Stockholm District Court in KKV/Selecta, T 8-712-96 (June 28, 1996) (in which the Court upheld the SCA's request to provisionally prohibit the parties from implementing the transaction pending the Phase II review).

(323) 4 ch. 12(3) art. & 6 ch. 1(5) art. Swedish Competition Law (SFS 2008:579).

(324) SCA TASKS & ORGANISATION, supra note 310, at 3.

(325) See Handlaggning av koncentrationer, KONKURRENSVERKET (SWEDISH COMPETITION AUTHORITY), http://www.kkv.se/t/Page__426.aspx.

(326) Dan Sjoblom, Dir.-Gen., Swedish Competition Auth., Speech at International Merger Regulation Conference in Brussels 4 (Mar. 11, 2011), available at http://www.kkv.se/upload/Filer/Press/Tal-artiklar/artikeldan_effektiv_forvarvsprovning_110311. pdf (in Swedish).

(327) 8 ch. 8 art. Swedish Competiton Law (SFS 2008:579). Preliminary matters are heard by one legally qualified member; an economics expert may also participate. Id. 8 ch. 9 art.

(328) 3 art. Market Court Act (SFS 1970:417), available at http://www.riksdagen .se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/sfs_sfs-1970-417/(in Swedish).

(329) Id. 4 art.

(330) Id. 9 art.

(331) There have nonetheless been cases in which the SCA requested additional information up to twenty business days after notification and considered as a result that Phase I had not started. Fredrik Lindblom & Amir Mohseni, Sweden, in MERCER CONTROL REVIEW 362, 368 (Ilene Knable Gotts ed., 2d ed. 2011).

(332) 4 ch. 11 art. Swedish Competiton Law (SFS 2008:579).

(333) Id.

(334) Id. 4 ch. 13 art.

(335) Id. 4 ch. 14 art.

(336) Id. 4 ch. 11 & 14 arts.

(337) Id. 4 ch. 15 art.

(338) Id.

(339) Id. 8 ch. 3 art.

(340) Id. 7 ch. 1 art.

(341) Id. 4 ch. 16 art.

(342) Id.

(343) Id. 4 ch. 15 art.

(344) See SWEDISH COMPETITION AUTH., SWEDISH COMPETITION RULES--AN INTRODUCTION 11, available at http://www.kkv.se/upload/Filer/ENG/Publications/Comp_ruels_intro.pdf. During 2011, of sixty-three notified transactions, Phase II proceedings were initiated in four cases, in one of which the SCA issued a summons to the Stockholm District Court requesting prohibition of the transaction. See Com Hem AB & Canal Digital, Case Dnr 513/2011 (Nov. 23, 2011). See also ORG. FOR ECON. CO-OPERATION & DEV., ANNUAL REPORT ON COMPETITION POLICY DEVELOPMENTS IN SWEDEN 2011, at 4 (2012), available at http://search.oecd.org/officialdocuments/displaydocumentpdf/?cote=DAF/COMP/AR(2012)7&docLanguage=En. An overview of all merger control cases that resulted in a ruling by the Stockholm District Court and the Market Court is available in Swedish at http://www.kkv.se/t/Page__580.aspx.

(345) Sjoblom, supra note 326, at 2. See also Com Hem AB & Canal Digital Case Dnr 513/2011 (Nov. 23, 2011) (in which the transaction was abandoned following the SCA issuing the summons).

(346) Sjoblom, supra note 326, at 2; Svenska Giro AB & Postgirot Bank AB, Case Dnr 759/2000 (Feb. 13, 2001); SF Bio AB & Sandrew Metronome Sverige AB, Case Dnr 61/2005 (Nov. 7, 2005); Ahlens AB & Departments & Stores Europe AB (NK Kosmetik), Case Dnr 524/2009 (Mar. 30, 2010); Com Hem AB & Canal Digital, Case Dnr 513/2011 (Nov. 23, 2011).

(347) Sjoblom, supra note 326, at 2. See also, e.g., Optiroc Group, Tingsratt [TR] [District Court] 1998-03-19 Case T 8-1002/97, aff'd, Marknadsdomstolen [MD] [Market Court] 1998-07-03 Case MD 1998:10..

(348) Assa Abloy AB & Copiax AB, Case Dnr 489/2008 (Feb. 3, 2009), dismissed, Tingsratt [TR] [District Court] 2008-09-29 Case T 12100-08.

(349) 4 ch. 2 art. Swedish Competition Act (SFS 2008:579), available at http://www.kkv.se/upload/Filer/ENG/Publications/The_Swedish_Competition_Act.pdf.

(350) Id.

(351) Selecta AB/Servess AB/Servess i Stockholm AB, Case Dnr 689/1996 (1997); OneMed & Simonsen Material, Case Dnr 596/2008 (Jan. 2, 2009).

(352) 6 ch. 1(3) art. Swedish Competiton Act (SFS 2008:579). See, e.g., Arla Foods amba & Milko, Case Dnr 445/2011 (Oct. 26, 2011) (SEK100 million).

(353) 6 ch. 2 art. Swedish Competiton Act (SFS 2008:579).

(354) See generally Swedish Competition Act (SFS 2008:579) (lacking any provision for such third party rights).

(355) Public Access to Information and Secrecy Act (SFS 2009:400), available at http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Offentlighets--och-sekretessla_sfs-2009- 400/?bet=2009:400 (in Swedish). See MINISTRY OF JUSTICE, PUBLIC ACCESS TO INFORMATION AND SECRECY ACT, available at http://www.government.se/content/1/c6/13/13/97/aa5c1d4c.pdf. Information is typically deemed "secret" if it relates to a party's business, innovations, or research and development, insofar as disclosure would cause the party to suffer injury.

(356) 17 ch. 17 3 & 5 arts.; 30 ch. 30 1-3 arts.; 36 ch. 2 art. Public Access to Information and Secrecy Act (SFS 2009:400).

(357) Swedish Competition Authority, Regulations on the Notification of Concentrations between Undertakings under the Swedish Competition Act, KKVFS 2010-3, at 3 (Nov. 15, 2010), available at http://www.kkv.se/upload/ Filer/ENG/Publications/KKVFS%202010-3%20eng.pdf.

(358) Id. at 2.

(359) Compare 3 ch. 2 art. Swedish Competition Act (SFS 2008:579) with 7 ch. 1(1) & 1(2) arts. Swedish Competition Act (SFS 2008:579).

(360) 14 ch. 9 art. Swedish Code of Judicial Procedure (SFS 1998:605), available at http://www.government.se/content/1/c6/02/77/78/30607300.pdf. The main parties may submit observations on the request to intervene. Id. 14 ch. 10 art.

(361) Id. 14 ch. 11 art.

ROBERT S. SCHLOSSBERG, Partner, Freshfields Bruckhaus Deringer US LLP.

KAREN ALDERMAN, International antitrust attorney admitted in New York and as a solicitor in England and Wales.
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Title Annotation:IV. Finland C. Remedies through VI. Sweden, with footnotes, p. 296-322; Symposium: U.S and International Merger Litigation
Author:Schlossberg, Robert S.; Alderman, Karen
Publication:Antitrust Bulletin
Date:Jun 22, 2013
Words:14068
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