INTERVIEW - MERGER REMEDIES - EC REGIME

Claude RAKOVSKY, DG COMP: EC Merger remedies

- How many mergers have been cleared with conditions since 2006? What is the trend? Is there a practical way to list all the remedies imposed by the EC Commission?

- What are the typical remedies imposed in horizontal mergers? And in non-horizontal mergers?

- Are there any differences between non-divestiture remedies in antitrust and merger cases?

- According to the 2005 Merger Remedies Study the most serious issues identified in divestiture remedies was its scope, in particular the up-/downstream links of the divested business. Would you still consider this to be most crucial issues? Would the Commission consider an up-dated study?

- The Merger Remedy Study also revealed that monitoring the remedy’s implementation process is key. Do you see place for an increase role for trustees? What is the impact if any of the Microsoft CFI ruling on this issue?

- Could you precise what is the legal basis used for appointment of remedies trustee by DG COMP?

- At which stage do companies most often approach DG COMP with remedy proposals? Is there a correlation between timing and a case being critical from a competition perspective?

- Proposals for remedy packages have become increasingly complex. According to your experience does it often happen that remedy packages are rejected for being too complex? On what grounds will such remedies generally be rejected?

- What are the major changes of the New Notice on Merger Remedies as compared to the old one?

- What differences do you make between commitments and conditions / obligations?

- How would you describe the basics of a « good remedy »? What are the general principles of an efficient remedy?

- Is DG COMP following the development of merger remedies in national merger cases?

Interview conducted by François Blanc, Université Paris II, Panthéon-Assas et Jonas S. Brueckner, Baker & McKenzie, Dusseldorf.

1992-1997 Head of unit in charge of international relations 1997-2006 Head of Unit in charge of merger control 2006-2007 Fellow Weatherhead Center for International Affairs, Harvard University Since 2008 Head of the Unit "Antitrust and Merger Policy and Scrutiny" Claude RAKOVSKY: EC Merger remedies How many mergers have been cleared with conditions since 2006? What is the trend? Is there a practical way to list all the remedies imposed by the EC Commission? In the years 2006-2008 (until November 2008), the European Commission has cleared respectively 19, 22, and 21 transactions with remedies, of which 6, 4, and 4 respectively after an in-depth phase 2 investigation. These numbers are slightly higher than in the years before but still considerably lower than in the boom years

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Claude Rakovsky, Claude RAKOVSKY, DG COMP: EC Merger remedies, February 2009, Concurrences Review N° 1-2009, Art. N° 23235, www.concurrences.com

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