On 8 and 9 August 2012, the European Commission ("Commission") published a series of decisions relating to various requests for derogation from the obligation to suspend the implementation of a concentration before it has been approved by the Commission ("standstill obligation").
The published decisions show that when dealing with an application for a derogation, the Commission takes into account the effects of the suspension on one or more of the undertakings concerned and the threat to competition posed by the concentration. According to the Commission, a derogation is granted only exceptionally, normally in circumstances where the standstill obligation would cause serious damage to the undertakings concerned by a concentration, or to a third party. Furthermore, it has to be unlikely that the proposed concentration poses a threat to competition.
Applications for derogation are not limited to cases in which the target is on the verge of insolvency (Case Comp/M.5721). For example, in the case IPM/ERG Nuove Centrali/ISAB Energy Services (Case Comp/M.4712), the transfer of insurance coverage for certain employees of the target had already been made effective, i.e. before the proposed concentration had been approved by the Commission. As a result, the employees would remain effectively without accident insurance until the transaction could be implemented following approval of the Commission. The parties therefore requested derogation from the standstill obligation. In its decision the Commission acknowledged that the parties would "suffer a serious disadvantage if a derogation were not granted". Furthermore, the Commission found that completion of the transaction prior to approval would not pose any threat to competition. This led the Commission to grant a derogation from the standstill obligation.