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examination represents the basis of the preliminary examination. For that
reason, this point must also be clearly included in the Guidelines Project.
Submission of Commitments in the Final Examination Phase.
The
Guidelines Project states that commitments may be submitted with the
written pleas related to the final examination report at the latest and that,
by reason of the duration of the final examination, the commitments may
also be developed in the second written pleas on condition that they have
been submitted at the beginning of the final examination.
Commitments submitted in this phase are, in principle, pending until
the final decision of the Board. Nevertheless, if the professional person
empowered to analyze the commitments reach the conclusion that the
commitments are sufficient to eliminate the competition concerns before
the ending of the final examination report, he or she may submit the
commitments to the Board’s agenda along with the report prepared by
the same authorized person.
As can be observed, the final decision related to commitments may
be given before the final report in this phase. Therefore, the parties
must also in this phase give full and fair information in order for the
commitments to be examined without any loss of time. However, this
point is not indicated in the Guidelines Project. Moreover, the Guidelines
Project does not indicate how the commitments are to be submitted to the
Board. Nonetheless, the commitments must be submitted to the Board in
this phase after being signed by a duly authorized person. For that reason,
all points mentioned above must either be listed in this part too or be
referred to in the preliminary examination phase.
Distinction between Condition and Obligation and Sanctions for
their Breach
The Guidelines Project, as with the Notice, states that condition and
obligation have different meanings but, in lieu of giving their definitions,
it explains these notions
via
examples. As a matter of fact, the Guidelines
Project sets forth that the divestiture of a business unit is a condition and that
the appointment of a divestiture trustee is an obligation. Nevertheless, it is
necessary that these notions be definedwithin the Guidelines Project.Within
this scope, it must be included within the Guidelines Project that a condition