THE FAS PRESIDIUM APPROVED RECOMMENDATIONS “ON APPLYING WAIVERS OF CONFIDENTIALITY WHEN CONSIDERING MERGER CONTROL TRANSACTIONS”

The Recommendations were developed by the FAS Russia with the participation of representatives of the Association of Antimonopoly Experts and the Non-Commercial Partnership "Competition Promotion in the CIS Countries".

The Recommendations contain information regarding the mechanism for the use of a waiver by the FAS Russia when considering global merger control transactions and regarding the principles followed by the FAS Russia when using this tool.

In addition, the Recommendations contain annexes such as a letter template to the FAS Russia on requesting a waiver and a model waiver itself, on which companies could base the requested waivers.

“When preparing these Recommendations, we built on the accumulated experience of the FAS Russia in using this tool, analyzed the information of the International Competition Network (ICN) on waivers during the investigation process, legal documents of the European Commission and the experience of foreign competition authorities in using waivers,” the Head of the Department for International Economic Cooperation Lesya Davydova said.

 “In the era of digitalization of the economy and global integration processes, the need for cooperation of competition authorities when considering merger control transactions is increasing. Taking into account the mentioned Recommendations, a waiver and its practical use will allow the FAS Russia to sufficiently analyze the activities of the parties to the transaction and make decisions coordinated with other competition authorities with respect and protection of the legal rights and interests of companies. Implementing this tool in practice will provide additional opportunities for the dialogue with the regulator and reduce the administrative burden on business by eliminating duplicate requests from competition authorities,” the Head of the Working Group of the Non-Commercial Partnership "Competition Promotion in the CIS Countries" Ksenia Tarkhova noted.

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A waiver is a voluntary procedure for companies – the parties to a transaction notified in several jurisdictions waive confidentiality on documents submitted to competition authorities as a part of national transaction review procedures, which allows specific competition authorities to exchange these documents and hold consultations on their discussion. Waivers allow competition authorities to use their resources more efficiently ensuring effective achievement of law enforcement goals.