The European Commission has issued a new notice on remedies in merger control, replacing the existing notice from 2001. “Remedies”, which are essentially compromises offered to the Commission by parties to a transaction to eliminate competition concerns, have featured prominently in several significant merger cases. The Commission, however, has questioned whether remedies have in practice actually eliminated competition concerns to the extent hoped.
The new notice essentially formalises existing practices with regard to remedies and reiterates the Commission’s position that remedies will only be accepted if they are viable and effectively eliminate competition concerns. It also provides explicit guidance as to what information parties must provide when offering remedies, and require that parties use a new form, “Form RM”.
While the new notice is likely to create greater certainty for companies that wish to offer commitments, it also may suggest that the Commission may be more sceptical towards certain types of remedies. For instance, the new notice prefers structural over non-structural remedies, and divestitures over licences. This greater certainty remains to be seen in practice, which will likely be soon as the new guidelines take effect immediately.