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The Role of Trustees in EC Competition Law

The Role of Trustees in EC Competition Law. Kris BOEYKENS DG COMPETITION EUROPEAN COMMISSION. Overview . - Role trustee - Functions monitoring trustee - Functions divestiture trustee - Reporting obligations - Other trustee related provisions - Discussion points. Role of trustee.

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The Role of Trustees in EC Competition Law

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  1. The Role of Trustees in EC Competition Law Kris BOEYKENS DG COMPETITION EUROPEAN COMMISSION

  2. Overview - Role trustee - Functions monitoring trustee - Functions divestiture trustee - Reporting obligations - Other trustee related provisions - Discussion points

  3. Role of trustee • Trustee role : oversee the implementation of commitments proposed by merging parties • Propose all measures to ensure compliance

  4. Monitoring trustee • Monitoring of divestment business • Overview of the preservation of economic viability, marketability and competitiveness • Holding seperate of divestment business + ring fencing • Monitoring splitting of assets and allocation of personnel

  5. Monitoring trustee • Monitor divestiture procedure and potential purchasers • Verify that potential purchasers receive sufficient information • Reasoned submission as to the suitability and independence of proposed purchaser

  6. Divestiture trustee • Exclusive mandate to sell the divestment business at no minimum price

  7. Reporting obligations • Monthly written reports to Commission • Operational and financial performance of divestment business • Preservation of viability, marketability and competitiveness of divestment business • Progress of divestiture procedure • Any problems with regard to non-compliance

  8. Trustee related provisions • Conflict of interest : trustee has to be independent from merging parties • Remuneration • Indemnity • Confidentiality

  9. Work in practice • Within 1 week after decision : parties propose trustee (management consultancy or accountancy company, individuals) • Commission approves trustee on the basis of independence, necessary qualifications, no conflict of interest • Selection of trustee is case specific

  10. Work in practice • Trustee mandate + approval Commission • Kick-off meeting Commission-trustee • Trustee reports on monthly basis • Possible additional questions • Reasoned opinion on proposed purchaser • Discharge of trustee • If parties fail to find purchaser : appointment of divestiture trustee

  11. Discussion points • Ideal situation : trustee already in place when decision Commission is taken? • Possible tasks for trustee after fulfilment of commitments until closing?

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