CCPC Continues Trend Of Requiring Behavioural Remedies To Clear Merger Notifications

Author:Ms Kate McKenna
Profession:Matheson
 
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The Irish competition regulator (the “CCPC”) has a track record of requiring behavioural remedies in merger cases which has been continued in the recent CCPC case of Pandagreen / Knockharley Landfill and Natureford.

By way of background, in 2018 the CCPC accepted commitments in five cases (5% of cases) all of which involved behavioural commitments and this represented a three-fold increase from 2017 where behavioural commitments were required in two cases. This distinguishes Ireland from other jurisdictions (including the UK and EU) where structural remedies are almost always preferred.

Until now, behavioural commitments accepted by the CCPC have tended to primarily consist of “ring-fencing” commitments to prevent access to competitively sensitive information held by the target about its competitors in the context of post-merger management of the merged firm and / or in a joint venture situation (e.g. M/18/016 Trinity Mirror/Northern & Shell, M/18/031 Uniphar/SISK Healthcare and M/18/009 BWG/4 Aces).

However, the CCPC went further recently, requiring detailed access remedies in two separate mergers involving the waste collection and processing sector:

In M/18/053 Pandagreen / Knockharley Landfill and Natureford the CCPC imposed a behavioural 'access remedy' commitment to address a potential input foreclosure concern, which required the merged firm to keep a certain specified percentage of landfill capacity available to competitors. This was to address concerns of potential foreclosure of competitors requiring access to two waste landfill sites in Knockharley and Ballynargan. The CCPC also required the parties to voluntarily notify any future acquisitions of landfill sites (i.e. where the notification thresholds are not met) as well as extensive quarterly reporting and annual certification obligations on the purchaser to confirm compliance with the access remedy Similarly, in M/18/036 - Enva/Rilta, a behavioural commitment was given at Phase 2 by the merged firm to accept hazardous waste, lubricant oil and hazardous contaminated soil from other parties. This commitment is similar but arguably less...

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