7In the Notice on remedies acceptable under Council Regulation (EEC) No 4064/89 and under Commission Regulation (EC) No 447/98 (OJ 2001 C 68, p. 3, ‘the notice on remedies’) the Commission sets out the guidelines which it intends to follow in relation to commitments, and states in particular that:— the parties are required to show clearly that the remedy restores conditions of effective competition in the common market on a permanent basis (paragraph 6) and from the outset to remove any uncertainties as to the type, scale and scope of the proposed remedy and as to the likelihood of its successful, full and timely implementation by the parties (paragraph 7);— the basic aim of commitments is to ensure competitive market structures. Commitments which are structural in nature, such as the commitment to sell a subsidiary, are, as a rule, preferable from the point of view of the objective of Regulation No 4064/89, inasmuch as such a commitment prevents the creation or strengthening of a dominant position previously identified by the Commission and does not, moreover, require medium- or long-term monitoring measures. Nevertheless, the possibility cannot automatically be ruled out that other types of commitments may themselves also be capable of preventing the emergence or strengthening of a dominant position. However, whether such commitments can be accepted has to be determined on a case-by-case basis (paragraph 9);— commitments submitted to the Commission in phase I must be sufficient to clearly rule out ‘serious doubts’ within the meaning of Article 6(1)(c) of Regulation No 4064/89 (paragraph 11);— where a proposed merger threatens to create or strengthen a dominant position which would impede effective competition, the most effective way to restore effective competition, apart from prohibition, is to create the conditions for the emergence of a new competitive entity or for the strengthening of existing competitors by means of divestiture (paragraph 13);— the divested activities must consist of a viable business which, if operated by a suitable purchaser, can compete effectively with the merged entity on a lasting basis. Normally a viable business is an existing one which can operate on a stand-alone basis, which means independently of the merging parties as regards the supply of input materials or other forms of cooperation other than during a transitional period (paragraph 14);— there are cases where the viability of the divestiture package depends, in view of the assets which are part of the business, to a large extent on the identity of the purchaser. In such circumstances, the Commission will not clear the merger unless the parties undertake not to complete the notified operation before having entered into a binding agreement with a purchaser for the divested business, approved by the Commission (paragraph 20);— whilst being the preferred remedy, divestiture is not the only remedy acceptable to the Commission. There may be situations where a divestiture of a business is impossible. In such circumstances, the Commission has to determine whether or not other types of remedy may have a sufficient effect on the market to restore effective competition (paragraph 26).
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