European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Structural commitments are generally thought to be more effective due to their effects on the structure of the market and are traditionally favored by the Commission over behavioral commitments, although undertakings usually propose the latter. According to the Commission, divestitures are the most effective form of commitment as they are the best way of ensuring the emergence of new competitors o …

Structural commitments

Structural commitments are generally thought to be more effective due to their effects on the structure of the market and are traditionally favored by the Commission over behavioral commitments, although undertakings usually propose the latter. According to the Commission, divestitures are the most effective form of commitment as they are the best way of ensuring the emergence of new competitors or of consolidating the position of the current competitors of the new entity. They are easy to implement as they do not require monitoring after the fact.

Divested assets must constitute viable and competitive activities . Such is the case for the commitment to divest a production facility of a product comprising the sales force and after-sales service for that product , or a research and development facility . The Commission may even impose the divestment of activities which do not raise competition concerns but which are necessary for the viability of the transferred elements . The business must be able to operate in an autonomous manner without any assistance from the parties to the concentration . Transfers can be of a combination of assets that did not previously constitute a stand-alone business insofar as each one already constitutes a viable activity , or can concern only production and/or distribution assets and brands . Undertakings to transfer can be in the form of the grant of a license to a third party . In any event, divestiture commitments must not be merely hypothetical. If the divestment proves impossible to carry out, the party must propose an alternative commitment to guarantee that the requirement will be met .

The purchaser must be appropriate, which means a viable and independent operator with no connection to the parties to the merger, and must have the financial resources, proven expertise and incentive to maintain and develop the divested business as a viable and competitive force in competition with the parties and other competitors . The Notice on remedies sets out very precise rules to ensure that the business is transferred to a suitable purchaser:

- the business is transferred within a fixed time-limit after adoption of the decision to a purchaser which is approved by the Commission;

- a binding agreement with a purchaser for the business must be entered into, approved by the Commission before completion of the operation;

- the parties identify a purchaser for the business and enter into a binding agreement already during the Commission's procedure (so-called “fix-it-first” remedy) .

The period for entering into a binding agreement is normally divided into a first period of six months in which the parties can look for a suitable purchaser (the 'first divestiture period') and, if the parties do not succeed in divesting the business, a second period of three months in which a divestiture trustee obtains the mandate to divest the business at no minimum price (the 'trustee divestiture period').

The transfer of shareholdings or assets  - or more specifically the withdrawal from a joint undertaking or an alliance , the transfer of intellectual property rights , or agreements  may, under those conditions be a lasting solution to the competition concerns identified. Such is the case for example, when the commitment to divest the activities of the target company which would have given rise to considerable overlaps  allows the purchaser of the divested business to replace the competitive constraint exerted by the target on the notifying party .

Commission Decision M.1636 of 21 March 2000, MMS/DASA/Astrium, LawLex200700002006JBJ, divestment of assets concerned including tangible assets, supply and sales contracts, intellectual property rights and personnel. See also Commission Decision M.1806 of 26 July 2000, AstraZeneca/Novartis, LawLex200500004487JBJ; M.2861 of 30 April 2003, Siemens/Drägerwerk/JV, LawLex200700000250JBJ; M.2547 of 17 April 2002, Bayer/Aventis Crop Science, LawLex200500004407JBJ.

Commission Decision M.4475 of 8 February 2007, Schneider Electric/APC, LawLex200700001748JBJ.

See EC Commission Notice No 2008/C 267/01 of 22 October 2008 at pt 50 et seq and 95 et seq. See also Best Practice Guidelines for Divestiture Commitments http://ec.europa.eu/comm/competition/merger/legislation/legislation.html.

Commission Decision M.042 of 12 April 1991, Alcatel/Telettra, LawLex200500005398JBJ; M.126 of 28 April 1992, Accor/Wagons-Lits, LawLex200500004232JBJ; M.1684 of 25 January 2000, Carrefour/Promodes (not avaiblable in English).

Commission Decision M.1940 of 6 December 2000, Framatome/Siemens/Cogéma/JV, LawLex200500004491JBJ.

Commission Decision M.190 of 22 July 1992, Nestlé/Perrier, LawLex200500004234JBJ.

Commission Decision M.1681 of 26 November 1999, Akzo Nobel/Hoechst Roussel Vet, LawLex200400003066JBJ.

Commission Decision M.6690 of 29 May 2013, Syniverse/MACH, LawLex201700000678JBJ.

Commission Decision M.3436 of 26 October 2004, Continental/Phoenix, LawLex200700002010JBJ.

Commission Decision M.913 of 18 November 1997, Siemens/Elektrowatt, LawLex200500004400JBJ; M.1578 of 1 December 1999, Sanitec/Sphinx, LawLex200400002636JBJ; M.1802 of 8 March 2000, Unilever/Amora-Maille (not available in English).

Commission Notice No 2008/C 267/01 of 22 October 2008 on remedies acceptable under Council Regulation No 139/2004 and under Commission Regulation No 802/2004, at pt 32.

Commission Decision M.012 of 31 July 1991, Varta/Bosch, LawLex200400002473JBJ; M.603 of 14 November 1995, Crown Cork & Seal/CarnaudMetalbox, LawLex200400002525JBJ; M.1628 of 9 February 2000, TotalFina/Elf, LawLex200500005291JBJ.

Commission Decision M.2544 of 15 February 2002, Masterfoods/Royal Canin, LawLex200500004193JBJ; M.2337 of 27 July 2001, Nestlé/Ralston Purina, LawLex200400003071JBJ; M.623 of 16 January 1996, Kimberly- Clark/Scott, LawLex200500004382JBJ.

Commission Decision M.1681 of 26 November 1999, Akzo Nobel/Hoechst Roussel Vet, LawLex200400003066JBJ, for a license covering all the know-how and trademarks relative to a product, access to registration of the product and agreements entered into with the licensee for its needs with respect to supply of the product.

Case T-210/01 General Electric v Commission [2005] ECR II-5575, LawLex200600000175JBJ, at pt 617.

Commission Decision M.2972 of 23 July 2003, DSM/Roche Vitamins, LawLex200400003300JBJ.

European Competition Law

349. Structural commitments

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349. Structural commitments

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise