What is a Monitoring Trustee

In its notes on Remedies and Commitments in Abuse Cases (2022 - link to pdf), the OECD states that "Effective enforcement requires competition [and regulatory] agencies to devise adequate monitoring mechanisms, have powers to act in case of non-compliance, and commit sufficient resources to monitoring.”

In most jurisdictions, the monitoring role is often contracted-out to an independent third party, the Monitoring Trustee.

The Monitoring Trustee needs to be:

• Independent from the company (and the other parties involved)

• Expert in monitoring compliance with complex regulatory conditions and obligations

• Capable of guiding the stakeholders towards a satisfactory implementation of the remedies

When is appointing a Monitoring Trustee necessary

The Monitoring Trustee is usually appointed to oversee and ensure the compliance of remedies or conditions imposed during, or as the result of, an antitrust or regulatory proceeding, such as merger and acquisition transactions, dominance and abuse cases or state aids cases.

The formal appointmentof the Monitoring Trustee usually happens immediately after the decision of the regulatory agency.

Who appoints the Monitoring Trustee

When the appointment of a Monitoring Trustee is mandated by a decision, the Monitoring Trustee is proposed by the company, and approved by the competition authorities or regulatory bodies in charge of the proceeding.

Companies can also elect to unilateraly appoint a Monitoring Trustee, for instance in cases where subsequent potential scrutiny by a regulatory agency is likely, or as a way to gaurantee the robustness of a behaviour.

What are the types of missions of a Monitoring Trustee in antitrust cases

The Monitoring Trustee is tasked with monitoring the compliance of a company with conditions and obligations attached to a decision by a competition authority (often, a clearance decision or a remedy order).

Remedies in antitrust cases can be broadly classified under two categories: structural remedies and behavioral remedies. Decisions from competition authorities can often provide for both types of remedies in a single case.

Structural remedies
In cases where the clearance decision by the competition authority is conditional upon the divestiture of certain assets (or their non contribution), the Trustee will:

• Monitor of the implementation by the company of the divestiture of certain assets (“Monitoring Trustee”)

• As required by the case specifics, be in charge of the divestiture of the assets (“Divestiture Trustee”)

• Assess that the company does its best efforts to preserve the competitiveness of the assets being divested

• Be the contact point for interested third parties

• Report to the competition authority on the implementation of the remedies

Behavioral remedies
Behavioral remedies vary largely in their nature, as well as in the role attributed to the Trustee; in some cases, the role of the Trustee will be limited to monitoring the implementation by the company of the conditions and obligations, while in others the Trustee may be in charge of the implementation himself.

Relevant guidance material on the role and appointment of a Monitoring Trustee

Below is a non exhaustive list of material from antitrust agencies on the role and appointment process of a Monitoring Trustee.

• 🇪🇺 Commission Notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004 (page 33 and following) - link to pdf

• 🇫🇷 Lignes directrices de l’Autorité de la concurrence relatives au contrôle des concentrations (page 107 and following) - link to pdf

• 🇺🇸 Antitrust Division policy guide to merger remedies - link to pdf

• 🇬🇧 Merger remedies - link to pdf

• ICN Merger remedies guide - link to pdf