EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
months from the Commission’s approval deci - sion) within which to conclude a binding agree - ment to sell the divestment business to a suit- able purchaser. If no such purchaser is found, a divestiture trustee will have a mandate to sell the business to a suitable purchaser at no mini - mum cost. The parties would then have a further period (eg, three months) after the Commission approves the purchaser to complete the sale of the divestment business. In cases where it may be more difficult to iden - tify a suitable purchaser, the Commission may require the parties not to close the main trans - action until they have entered into an agree - ment with a suitable purchaser approved by the Commission (an “upfront buyer” remedy). Less commonly, the parties may name a specific pur - chaser, with whom they have already entered into an agreement, in their original commitment proposal (a ”fix-it-first” remedy). In that case, the buyer is approved in the Commission’s decision clearing the main transaction (without the need for a separate approval process) and the Com - mission will take the buyer’s assets/capabilities into account when evaluating the sufficiency of the remedy. In any case, between the time that the Com - mission accepts a divestment commitment and the close of the sale to the approved purchas - er, the divestment must be held separate and ring-fenced from the parties’ other operations. The parties must appoint a monitoring trustee, who monitors the parties’ compliance with the commitments, evaluates the suitability of any potential purchasers and advises the Commis - sion accordingly. Failure to Comply With Commitments If the parties fail to comply with a condition of clearance (eg, by failing to divest or by re-acquir -
ing the divestment business), the Commission’s clearance decision automatically becomes void. If the parties breach an obligation (ie, a step implementing the remedy, such as appointing a trustee), the Commission has the discretion to revoke its clearance decision. The Commission may also fine the parties up to 10% of their annual turnover and/or issue peri - odic penalty payments for failing to comply with commitments. 5.6 Issuance of Decisions The Commission will notify its decision to the parties and to the member states, and may also issue a press release providing a basic summary of its conclusions. The Commission will publish a non-confidential version of any Phase II decision in the EU’s Official Journal and on its website, often after a delay of several months. The Commission pro - vides non-confidential copies of all its merger decisions on its website. The Commission adopts the same review pro - cess regardless of the nationality of the parties to a transaction, including with regard to prohibi - tions and remedies. It has required remedies in numerous transactions involving non-European parties, and has also blocked such transactions. 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications The Commission’s clearance decision covers restrictions that are “directly related and nec -
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