The Burden of Proof in the European Commission’s Draft Notice on Remedies

Carsten Grave, Jun 29, 2007

On April 24, 2007 the European Commission’s Directorate General for Competition (“DG Comp”) began its public consultation on the new “Commission Notice on remedies acceptable under Council Regulation (EEC) No 139/2004 and under Commission Regulation (EC) No 802/2004″ when it published a draft of this text (“Draft Remedies Notice”), accompanied by a draft “Commission Regulation amending Regulation (EC) No 802/2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings” (Draft Amendment to the Implementing Regulation).

The Draft Amendment to the Implementing Regulation will enable the Commission to request formalized remedy proposals and their assessment from the parties notifying a concentration (or merger). The Draft Remedies Notice contains an overview of DG Comp’s current thinking on remedies in merger control proceedings, assessing several types of remedies, but ultimately focusing on the divestment of businesses, in line with both statistics (where divestments account for the majority of remedies in the Commission’s merger control decisions) and its explicit preference for such remedies (see Draft Remedies Notice, para. 22). The Draft Remedies Notice will, once finalized, replace its 2001 predecessor, the Commission Notice on remedies acceptable under Council Regulation (EEC) No 4064/89 and under Commission Regulation (EC) No 447/98 (“2001 Remedies Notice”, see 2001 Official Journal of the European Communities, No C 68, page 3). Competition law practitioners should be aware, however, that DG Comp will certainly be inclined to apply the principles and policies set out in the Draft Remedies Notice immediately, and not only after finalization.

Without stating that it would be the most important, or even most interesting, topic touched upon by the Draft Remedies Notice, this Viewpoint will focus on the burden of proof for the effectiveness of remedies proposed by the merging parties.

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