Competition Bureau Model Timing Agreement
On July 16, 2019, the Competition Bureau (Bureau) issued a draft model agreement for the use of undated mergers in the review of undated mergers, where the parties intend to build on the defence of improved efficiency under Section 96 of the Canada Competition Act. In July 2019, the Office requested feedback on a draft version of the timing agreement model. The project amendments reflect the views of the legal community and are communicated by the latest investigation into CN`s proposed acquisition of H-R in 2019, the first review of the merger to use the model. On May 21, 2020, the Competition Bureau published its standard timetable agreement, accompanied by guidelines for the Office`s overall direction, to analyze the demands for effectiveness made by the parties to the merger to defend a concentration. The model agreement contains amendments to the project published in July 2019, which reflects feedback from the legal community as well as the Bureau`s recent investigation into CN`s proposed acquisition of H-R — the first merger review used by the model. It is expected that the parties to the merger will enter into an agreement over time for the Office to review the efficiency requirements, as the review of these claims requires a detailed and resource-rich analysis. The agreement ensures that the Bureau has the time and information to assess the anti-competitive effects of a proposed merger and the alleged efficiency gains before deciding whether it should be challenged in the Competition Tribunal. In the absence of a temporal agreement that the Bureau deems acceptable, the Commissioner suggested that he would not be willing to use his discretion to consider the defence of effectiveness as part of the merger control process. As explained in paragraph 14 of the configuration agreement, information exchanged under the agreement is treated confidentially, but is generally not subject to a settlement privilege. It is accepted that the positions or conclusions of the parties to the merger or the Commissioner may change if additional information is available or if the analysis is further refined.
Among the features of the proposed model agreement, which would constitute an agreement between the merging parties and the Bureau, which is expected to place the greatest burden on the merging parties, the Competition Act (the “Law”) gives the Competition Tribunal (the “court”) broad powers to remedy mergers that could significantly prevent or reduce competition (a “SPLC”). In particular, in the event of a completed merger, the court may order the dissolution or disposal of assets and shares or, in the event of a proposed merger, order the parties not to pursue the merger or part of the merger. In addition, with the agreement of the Competition Commissioner (the “Commissioner”) and the concentration parties, the Tribunal may order the parties to take further action. Given that each merger issue in which the parties raise a defence of effectiveness raises new questions to be assessed, the Board`s approach will continue to be refined in the future. The standard timing agreement sets out a framework in which the effectiveness requirements of the merger parties can be assessed by the Bureau, but this framework must be tailored to the particulars of a particular case, for example. B when the parties attempt to reach a time agreement. In addition, as the Bureau has gained more experience with the model timing agreement, it will continuously re-evaluate its process of analyzing efficiencies during merger revisions to determine whether there is a more effective method for conducting this analysis. As a result, the Office remains open to feedback on the standard timetable agreement and will update these guidelines as the process evolves. In light of the conditions of this agreement, which are recognized to be sufficient, the parties agree that, as part of their consideration of whether a transaction may result in a significant prevention or reduction in competition, the Bureau receives its