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NEWSLETTER 2011
140
Divestiture of a Business.
The Guidelines Project states that
• the whole divestiture of a viable stand-alone business in a market
or
• the grouping of various assets and/or the taking out of certain of
these assets (“carve-out”) from an existing viable stand-alone
business in a market
represent the most effective commitment to eliminate the competition
concerns arising out of a concentration operation. For that reason, this
kind of commitment is regulated in detail within the Guidelines Project.
The commitment related to the divestiture of a business may
be acceptable if the business to be divested can continue to exist by
competing effectively with the merged entity on a lasting basis and if
it can be independent of the parties of the concentration, which means
without needing any cooperation from them. For that reason, the financial
resources of a potential purchaser are not taken into consideration in
examining the commitment.
The following elements will be included in the commitment in order
that the Board may appreciate the commitment:
Scope of the Business to be Divested.
The Guidelines Project states
that the content of the business to be divested must be well-defined and
detailed. Within this scope, the content of the divestiture will include,
with regards to the characteristics of each transaction, the tangible assets
related to production, distribution or sale and also to the personnel or the
current agreements on goods or services in order to ensure competitiveness
of the business. In addition to these assets, intangible assets may also
be included. The most important point concerning intangible assets is
that the divesting parties must waive all their rights concerning these
assets and that these assets will, once transferred to a suitable purchaser,
immediately acquire a competitive and viable aspect. Indeed, as also
mentioned above, what is important is that the business is a business
capable of existing alone, which means a business which competes
effectively with the merging parties and operates independently of them.
Non-reacquisition Condition.
The Guidelines Project sets forth
that in order to maintain the structural effect of the commitment the