The Commission’s Notice on remedies states that waivers “will very rarely be relevant for divestiture commitments” and since divestiture commitments are required to be implemented in a short time after the decision, it is “very unlikely” that sufficient changes in market circumstances will have occurred for the Commission to accept any modifications of the commitments.[1] In May 2020, the Commission waived commitments given to secure merger control approval in two cases.

Nidec/Whirlpool. On April 12, 2019, the Commission approved Nidec’s acquisition of Embraco from Whirlpool, which combined two leading manufacturers of refrigeration compressors, on condition that Nidec divest its entire household and light commercial refrigeration compressors business (and not reacquire the divested business for 10 years).[2]

One year later, on May 15, 2020, the Commission announced that it had approved a request by Nidec to reacquire part of the divested business, namely a fixed speed household compressor manufacturing line.[3] After receiving the waiver request from Nidec, and following a market investigation, the Commission concluded that the structure of the relevant markets had changed to the extent that Nidec’s ownership of the asset in question could no longer have anticompetitive effects. Nidec had announced the proposed reacquisition on April 1, 2020, in an attempt “to preserve as many jobs as possible at the site,” implying that, absent the reacquisition, manufacturing could have been discontinued.[4]

Takeda/Shire. On November 20, 2018, the Commission approved Takeda’s acquisition of Shire on condition that Takeda divest Shire’s pipeline drug for the biological treatment of inflammatory bowel disease (“IBS”). According to the Commission, without this divestment Takeda would have had an incentive to delay or discontinue the development of this pipeline drug, as it already had a competing drug.[5]

Before completing the divestment, Takeda asked the Commission to waive the commitment in light of a number of unexpected developments. The Commission carried out a market investigation and identified “several permanent, significant and unforeseeable developments” that had occurred during the divestiture process that impacted the competitive landscape and meant that the divestment was no longer necessary. Specifically: (i) promising new IBS drugs had emerged with potentially superior qualities to those of Takeda and Shire; (ii) studies of Shire’s pipeline drug had yielded negative results; and (iii) there were unforeseeable difficulties in recruiting patients for Shire’s clinical trials. The Commission concluded that the prospects of Shire’s pipeline drug were therefore “severely impaired,” and waived the commitments in their entirety.[6]

The Commission’s decisions in Nidec and Takeda may signal an increasing willingness to review divestiture commitments, including when a waiver is requested a short time after conditional clearance was granted. This approach seems in line with the Lufthansa judgment of May 16, 2018, in which the General Court clarified that the Commission—if in receipt of a waiver request— must carefully examine all relevant information and waive any remedies that are manifestly no longer necessary.[7] It remains to be seen if the economic impact of the Covid-19 pandemic leads to an increase in waiver applications.

[1]      See Commission Notice on remedies acceptable under Council Regulation (EEC) No. 139/2004, and under Commission Regulation (EC) No. 802/2004, para. 73.

[2]      Nidec/Whirlpool (Embraco Business) (COMP/M.8947), Commission Decision of April 12, 2019 (not yet published). The non-confidential version of the commitments is available at:

[3]      See Commission’s Press Release, ‘Mergers: Commission partially waives commitments made by Nidec to obtain clearance of its acquisition of Embraco,’ May 15, 2020, available at:

[4]      Nidec to acquire the Delta production line from Secop Austria, April 1, 2020, available at: See also Restructuring of Secop Austria GmbH, October 22, 2019, available at:

[5]      Takeda/Shire (COMP/M.8955), Commission Decision of November 20, 2018, para. 94.

[6]      See Commission’s Press Release, ‘Mergers: Commission waives the commitments made by Takeda to obtain clearance of its acquisition of Shire,’ May 28, 2020, available at:

[7]      Deutsche Lufthansa AG v. Commission (Case T-712/16) EU:T:2018:269 (“Lufthansa”). The previous waiver following Lufthansa was granted in 2019 and concerned remedies offered in the case Evraz/Highveld (COMP/M.4494), Commission decision of February 20, 2007.