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6 Competition L. Int'l 73 (2010)
Monitoring Compliance with Merger Remedies - The Role of the Monitoring Trustee

handle is hein.journals/cmpetion6 and id is 159 raw text is: MONITORINGICOMPLIANCE WITH MERGERR S THE ROLE OF T M TNG TRUSTEE Jonas S Brueckner Federal Ministry of Economic Affairs, Berlin ntroduction Ensuring compliance with competition and merger remedies represents a major challenge to competition authorities. While in theory there are a number of compliance monitoring mechanisms available - for example, self-reporting by the parties, formal arbitration provisions, or relying on third parties to monitor compliance - the appointment of a monitoring trustee is an increasingly important feature not only of European Union (EU) Merger Control' and the enforcement of EU competition law more generally.2 Competition authorities typically see themselves as enforcers of competition law acting on a case by case basis rather than regulators who keep a watching brief on an industry over a longer period of time. They claim that they lack the resources or cesessary expertise to monitor compliance witI commitments, particularly long-term beh~avioural commritments ft is row common practce for the Europear Commissioni (the 'Commission') to require th e appoirntment of a trustee to oversee rmerger ren-edies and comimitments. Over the last five years 91 out of the 9~9 conditional merger cases decided by the Commission corntained a monitoring trustee provision, and in the last two years every merger case cleared subject to conditions and obligatons cont ained such a provision. Several of the major European merger jurisdictions als enreasinigly nake use of monxitormg trustees. The appoi nmnt of trustees ir rational merger cntrol proceedirgs is, however, not as well developed as at the EU level. ThornasHoehn* CornpetitionRx and Imperial College Business School, London This article deals with and analyses the role of the monitoring trustee in EU merger control. We first discuss the role of the monitoring trustee reviewing the scope of activities, the selection and appointment process, the independence requirements that trustees must adhere to and the skills and expertise that are typically needed. Then follows a discussion of some of the issues that trustees face in practice, which reveals an important distinction between management and monitoring of the divestment businesses in structural remedies cases, and the danger of being seen as the regulator rather than a monitor in behavioural remedies cases. We also discuss the increasingly important role of the monitoring trustee with respect to third parties and the resolution of disputes. We end with some comments on the implications of the monitoring trustee experience in merger cases for comupliance monitoring in other areas of EU competition law enforcement. Selection and appo ntrnent procedure The role of tne mortoring trustee in a specific case is defined in the trustee mandate and based on the commitments the parties have offered. Commitments may vary by type of jurisdiction and investigatior. In merger cotrol proceedings commritments tend to besrutral in nature wt t h divestrmenits )f businesss business units or key sstbeing g all favoudb aor atitrust jurisdictions such as th US, EU, UK and Ge rman. COMP TT ON LA T RNAT ONAL wo w mth Monultoruing Complianc wi MerAw&wer Rem dies T e Rol e of the Monwitorol Tru slt e

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