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commitments have to foresee that the parties of the operation of the
concentration cannot subsequently acquire influence over the whole or
parts of the divested business.
Suitable Purchaser.
A suitable purchaser is the key aspect of
divestiture since the divested business may only maintain effective
competition through a suitable purchaser. Therefore, the suitable
purchaser should be independent of the parties and should have the
financial resources, information, and eagerness necessary in order to
compete with the parties and other competitors within the market sector
of the business which is taken over. In addition, the suitable purchaser
should not cause any delay on the realization of commitments and
cause new competition issues. These conditions set forth concerning the
suitable purchaser are, without any doubt, general conditions, and other
conditions that the suitable purchaser should fulfill may be required with
regards to the characteristics of each transaction.
Removal of Links with Competitors.
The Guidelines Project sets
forth that the commitment to remove any links between the Parties
or competitors may be used in cases where these links contribute to
competition concerns.
The Guidelines Project, as stated in the Notice, regulates the removal
of links between the Parties by means of exemplification. Within this
framework, it enumerates the transfer of minority shares, the elimination
of cross-directing structures, or the termination of agreements concluded
between competitors.
Other Non-Divestiture Remedies.
The Guidelines Project, similarly
to the Notice, sets forth three commitments other than the divestiture
commitment:
Behavioral Commitments.
The Guidelines Project sets forth that
the behavioral commitments may only be accepted if it is impossible
to implement a structural commitment. However, as is analyzed in
our Newsletter of February 2011, behavioral commitments can be as
effective as structural commitments. Therefore, the implementation of
behavioral commitments cannot be conditioned on the non-availability
of the structural commitment.