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third parties; and (xi) enforcement procedures pertaining to violations of the merger control laws
(e.g., failure to notify) or merger review decisions (e.g., breach of conditions or obligations);
(xii) measures for protecting confidential information.
Comment 3: Merger control laws and regulations are often written in general terms, and the
principles and criteria used to apply the substantive standard of review set forth in the basic
legislation are often developed through administrative practice and case law. Accordingly, to
achieve transparency, publicly available materials should include not only the basic legislation,
but also the relevant case law, enforcement policies, and administrative practices that clarify and
develop the basic legal framework. In particular, these supplemental materials should provide
insight into the substantive principles and criteria (i.e., the analytical framework) that the
competition agency uses in applying the law. If a jurisdiction's merger test includes
consideration of non-competition factors, the way in which the competition and non-competition
considerations interact should also be made transparent.
C. Competition agencies should promote transparency by making information
about the current state of merger control law, policy, and practice readily
available to the public.
W
ORKING GROUP COMMENTS
Original Comments (June 2003)
Comment 1: There are many appropriate ways for competition agencies to promote
transparency. These include, among others: publishing general guidelines and notices on
substantive law and procedure; publishing individual enforcement and non-enforcement
decisions; issuing press releases on important decisions; issuing statements explaining actions or
non-actions that signify a change in enforcement policy; delivering speeches; and publishing
informational materials. Methods can be combined for increased effectiveness.
Comment 2: A reasoned explanation should be provided for decisions to challenge, block or
condition the clearance of a transaction, and for clearance decisions that set a precedent or
represent a shift in enforcement policy or practice. Some competition agencies issue a reasoned
decision at the end of each merger review, while others do so when enforcement action is taken.
What matters is that the available information should allow the public to monitor consistency,
predictability, and fairness in the application of the merger review process.
Comment 3: After acquiring sufficient experience, competition agencies may wish to consider
publishing guidelines on merger analysis, procedure, and/or jurisdiction to assist interested
parties in handling future merger cases. Many competition agencies find it useful to obtain
public input prior to issuing such guidelines. To the extent that competition agencies formally
rely on guidelines, policies, or precedents from other jurisdictions, the scope and nature of such
reliance should be publicly disclosed. If such guidelines are issued, they should be reviewed
periodically to reflect current practice.