e-book2011

NEWSLETTER 2011

134

The principle of proportionality will be understood as not going

beyond what is necessary for the realization of the objectives of the

Guidelines Project. In other words, this principle means that, if there is

more than one commitment, the least troublesome will be chosen, and

equilibrium will be established between the concerns and the objectives.

Commitments will be efficient and implementable.

Commitments

submitted by the partiesmust be efficient. In other words, the commitments

will

“eliminate sustainably and without any doubt”

the competition

concerns which may arise from the operation of concentration. In

addition, the commitments must be implementable within the shortest

time. Otherwise, in case of any modification in the conditions of the

market or in case of the realization of an extraordinary or unexpected

situation, commitments will lose their objective and will be insufficient

to eliminate the competition concerns.

In order for the Board to determine whether the commitments fulfill

these conditions, the parties must also submit to the Board, in addition to

the commitments, detailed information on the content and implementation

of the commitments and indicate how they will eliminate competition

concerns. Nonetheless, the Board will not base its analysis only by using

the information submitted by the parties. As a matter of fact, the Board

will also analyze elements such as the place of the parties and their

competitors in the market, the implementation of the commitments by

the parties efficiently and in due time within the conditions of the market.

Accordingly, the obligation to submit commitments which may

eliminate competition concerns arising from an operation is the

responsibility of the parties, and the analysis of these commitments is the

responsibility of the Board.

There is no doubt that this regulation parallel to the Notice is very

felicitous. However, in order to easily reach the objectives set by the

Guidelines Project, the following amendments must be realized:

• As with the Notice, the “review clause” must also be included

within the Guidelines Project. This clause gives the parties

The term “remedy proposition” is used within the Guidelines Project in lieu of “commitment”.

However, the term “commitment” will be used in our article.