EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
• any remedies must entirely eliminate the SIEC – the remedies offered by the parties must be sufficient to restore the conditions of compe - tition that would have existed in the absence of the transaction; and • it must be possible to implement the rem - edies effectively within a short period of time. In particular, the remedies must offer the Com - mission a sufficient degree of certainty that the commercial structures or relationships resulting from the remedies can be maintained. In assessing the likely effectiveness of remedies, the Commission will consider the nature of the market, any risks inherent in implementing the remedies and the likelihood of the remedies being maintained over time. The Commission is sceptical of remedies that are too complex or require significant ongoing monitoring to ensure compliance (see 5.2 Parties’ Ability to Negotiate Remedies ). 5.4 Negotiating Remedies With Authorities The parties are responsible for offering remedies – the Commission will neither impose nor pro - pose remedies on its own initiative. In practice, the case team will work with the parties to further refine the parameters of remedies offered by the parties so that they sufficiently address the case team’s concerns. Process Remedies are offered by submitting commit - ments, which become the operative terms of the remedy, accompanied by “Form RM”. The Commission’s ”Best Practice Guidelines for Divestiture Commitments” provide a model text for divestment commitments. Form RM is an annex to the Implementing Regulation. Both the
commitments and Form RM require consider - able time and effort to complete. Remedies may be offered at the following stag - es: • during pre-notification (in draft form); • in Phase I – before working day 20 (as Phase I is very short, the Notice on Remedies speci - fies that, in order to be accepted, remedies offered in Phase I must provide “a clear-cut answer to a readily identifiable competition concern”, and most Phase I remedies there - fore take the form of divestitures); and • in Phase II – before working day 65 (the Com - mission will only accept remedies submitted The Commission will “market-test” proposed remedies with market participants to ensure that they will resolve the competitive concerns at issue (see 7.2 Contacting Third Parties ). The Commission will also consult with member state NCAs and (where relevant) the EFTA Sur - veillance Authority. If the competitive concern at issue affects markets broader than the EEA or requires a global remedy (such as the divest - ment of a worldwide business), the Commission will typically also co-ordinate with other compe - tition authorities. The Commission may be reluc - tant to accept global remedies that may not be accepted by other authorities. 5.5 Conditions and Timing for Divestitures According to the Remedies Notice, the parties may be allowed to close their transaction imme - diately after receiving the Commission’s condi - tional clearance decision. In such cases, the par - ties would typically have a set deadline (eg, six later in exceptional circumstances). Market Testing and Consultation
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