EC Consults On Updating Remedies Guidelines

by Ulrika Lomas, for LawAndTax-News.com, Brussels

26 April 2007

The European Commission on Tuesday launched a public consultation on draft guidelines that clarify the Commission’s policy with regard to 'remedies' in merger control.

"Remedies" are modifications to a merger proposed by the parties to the transaction, with a view to eliminating competition concerns identified by the Commission in its merger control inquiry.

The new draft Remedies Notice would adapt the current guidelines (dating from 2001) in the light of an extensive study undertaken by the Commission into the implementation and effectiveness of remedies, recent judgements of the European Courts and the new Merger Regulation, in force since 2004.

The new Remedies Notice is due to be adopted definitively by the Commission later in 2007, taking into account the results of the consultation launched this week.

The EC confirmed that:

"The draft revised Remedies Notice will replace the current Notice adopted in 2001. The proposed review has been undertaken for several reasons."

"First, the revision reflects the conclusions from the Commission's “Merger Remedies Study”, published in October 2005. In this study, the Commission undertook a comprehensive review of past merger cases where remedies were accepted and analysed the implementation and effectiveness of these remedies."

"Second, the draft revised Notice also incorporates recent jurisprudence from the European Courts which gave useful guidance on the legal framework for accepting or rejecting remedies as well as on more specific issues concerning their design. The experience gained in the Commission’s practice in recent years in the implementation of remedies is also reflected."

"Finally, the draft revised Notice takes into account changes concerning remedies introduced in the 2004 Merger Regulation which. Some of the proposed amendments, such as a new information form to be submitted by the parties to describe their remedies proposals, will also require an amendment of Commission Regulation 802/2004 on implementing the Merger Regulation."

The public consultation will be open for two months, and the Commission invites all interested parties to submit their observations within this time-frame.

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