The following Competition practice note provides comprehensive and up to date legal information covering:
The EU Merger Regulation (EUMR) empowers the Commission to accept remedial undertakings as a condition of a phase I clearance or after a phase II in-depth investigation (under the EUMR, remedies are known as 'commitments'). The Commission has shown flexibility and novelty in fashioning remedies, preferring conditional clearances to outright prohibitions.
Since January 2012, the Commission has accepted commitments offered by the notifying parties in approximately 4% of phase I cases but just under 70% of phase II cases. Also considering outright prohibitions and notifications that have been withdrawn, which are almost invariably because of SIEC concerns which the parties were unwilling or unable to alleviate by offering suitable commitments; since January 2012, approximately 8% of notified concentrations have been prohibited, withdrawn or made subject to commitments.
The Commission cannot impose commitments, although it can put pressure on the parties to offer suitable commitments if there are competition concerns. The Commission is also willing to provide general guidance on the appropriateness of what commitments to offer.
This evidences that large global transactions between close competitors can still be cleared if appropriate remedies can be found that which, at the same time, do not call into question the economic rationale of the transaction itself. For example, in Ball/Rexam (M.7567), where the parties were the two leading manufacturers of beverage cans in the world (and in Europe) with a
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