Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel,   BELGIË  
 
Tel: +32 229 -91111. Fax: +32 229 -64301. E -mail: COMP -MERG ER-REGISTRY@ec.europa.eu .  EUROPEAN COMMISSION  
Brussels,  3.12.2019  
C(2019) 8791 final  
 
PUBLIC VERSION  
 
To the notifying party  
Subject : Case M .9449  – VAG / VARTA (CONSUMER BATTERY, 
CHARGERS AND PORTABLE POWER AND LIGHTING 
BUSINESS)   
Commission decision  pursuant to Article 6(1)(b) in conjunction with 
Article 6(2) of Council Regulation No  139/20041 and Article 57 of the 
Agreement on the European Economic Area2 
Dear Sir or Madam,  
(1)  On 14 October 2019 , the European Commission received notification of a propos ed 
concentration pursuant to Article 4 of the Merger Regulation  by which  Varta 
Aktiengesellschaft (‘VAG’, Germany) will acquire, within the meaning of Article 
3(1)(b) of the Merger Regulation, a part of Energizer Holdings, Inc. (‘Energizer’, 
USA)  (the ‘Tra nsaction’).  
                                                 
1  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’). With effect from 1 December 2009,  the Treaty on 
the Functioning of the European Union (the ‘TFEU’) has introduced certain changes, such as the 
replacement of ‘Community’ by ‘Union’ and ‘common market’ by ‘internal market’. The 
terminology of the TFEU will be used throughout this decision.  
2  OJ L 1, 3.1.1994, p. 3 (the ‘EEA Agreement’).  
In the published version of this decision, 
some information has been omitted 
pursuant to Article 17(2) of Council 
Regulation (EC) No 139/2004 concerning 
non-disclosure of business secrets and other  
confidential information. The omissions are 
shown thus […] . Where possible the 
information omitted has been replaced by 
ranges of figures or a general description.  
 
 
2 (2)  The Transaction takes place as a result of a prior notification to the Commission of 
a proposed concentration between Energizer and Spectrum Brands Holdings, Inc. . 
By decision of 11 December 2018, adopted in application of Article 6(1)(b) in 
conjunction with Article 6(2) of the Merger Regulation, the Commission declared 
that concentration between Energizer and Spectrum compatible with the internal 
market and the EEA Agreement (the ‘Energizer/Spectrum Decision ’)3, subject to 
full compliance with the commitments annexed to that decision (the 
‘Energizer/Spectrum Commitments ’). Pursuant to the Energizer/Spectrum 
Commitments, Energizer committed to divest certain assets  (‘the Divestment 
Business’ or ‘the Target’).  
(3)  VAG is referred to in the decision as  the 'Notifying Party', and VAG and the 
Divestment Business together are referred to together as the 'Parties'.  
1. THE PARTIES  
(4)  VAG, via its subsidiary Varta Microbattery  GmbH (‘Varta Microbattery’, 
Germany) , manufactures and supplies microbatteries, and via its subsidiary Varta 
Storage GmbH  (‘Varta Storage’, Germany) , manufactures and supplies energy 
storage devices for private households, customer -specific, large -scale storage 
applications as well as energy solutions for customer -specific and standardis ed 
lithium -ion batteries. VAG is active on an E EA-wide and global basis.  
(5)  The Divestment Business comprises of Spectrum’s former Varta consumer battery, 
chargers and portable power and lighting business in the EMEA region, as detailed 
in the Energizer/Spect rum Commitments . The structure and entities constituting the 
Divestment Business are shown in Figure 1. 
Figure 1 - Divestment Business (circulated in blue)4 
[…] 
(6)   The Divestment Business  does not include the Rayovac hearing aid batteries 
('HAB s') business t hat Energizer acquired from Spectrum in the Spectrum 
Transaction. The Divestment Business  will have the benefit of a […] exclusive 
supply arrangement for Rayovac -branded HAB s specifically for the mass retail 
channel (HAB s Supply Agreement), pursuant to the  HAB s re-branding remedy that 
was approved by the Commission in the Spectrum Decision.  
2. THE OPERATION AND THE  CONCENTRATION  
(7)  Pursuant to a binding Acquisition Agreement entered into between VAG and 
Energizer on 29 May 2019, VAG will acquire the Divestment Business by way of 
                                                 
3  M.8988 – Energizer/Spectrum Brands.  
4  Form CO, paragraph 28.  
 
 
3 purchase of shares . VAG will thus acquire sole control over the Divestment 
Business that prior to the Transaction constitutes a part of Energizer.  
(8)  The operation thus constitutes a concentration pursuant to Article 3 (1)(b) of the 
Merger Regulation.  
3. UNION  DIMENSION  
(9)  The Transaction does not have a U nion dimension within the meaning of Article 1 
of the Merger Regulation.  
(10)  On 9 August 2019, the Notifying Party informed the Commission, by means of a 
reasoned submission  under Article  4(5) of the Merger Regulation , that the 
concentration is capable of being reviewed under the national competition laws of 
at least three Member States  (namely Austria, Germany, Poland, Romania and 
Spain) and requested that it should be examined by the Com mission.  
(11)  The Commission transmitted this reasoned submission to all Member States on 
9 August 2019. The Member States competent to examine the concentration under 
their national competition law did not express their disagreement to the request for 
referra l within 15 working days.  
(12)  The Transaction is therefore deemed to have a Union dimension  pursuant to Article 
4(5) of the Merger Regulation . 
4. COMPETITIVE  ASSESSMENT  
4.1. Introduction  
(13)  Batteries are devices that store electrical energy by means of a chemical intera ction 
between a negative electrode (anode) and a positive electrode (cathode) through a 
conductive material (electrolyte). The resulting electricity can be used to power a 
wide range of devices or installations.5  
(14)  The overall battery industry encompasses different categories: (i) industrial 
batteries, (ii) automotive batteries, (iii) batteries that are directly integrated into 
consumer devices and (iv) batteries used in relatively small devices (e.g. power 
tools and toys).6  
 Consumer batteries can be disti nguished based on their size and overall 
purpose:  
 Household batteries: common battery sizes such as AA and AAA typically 
used to power various types of household electric devices. These household 
                                                 
5  M.8988 – Energizer/Spectrum Brands , paragraph 7.  
6  M.8988 – Energizer/Spectrum Brands , paragraph 8.  
 
 
4 batteries can be (i) disposable (primary), if manufactured f or example 
according to an alkaline or lithium chemistry, or (ii) rechargeable 
(secondary) if manufactured according to a chemistry that allows recharging 
(e.g. nickel -metal hydride (NiMH));  
 Specialty batteries: batteries that have a coin or a button shape , are most 
commonly manufactured with chemistries such as lithium and are typically 
used for electronic watches and photo equipment; and  
 Hearing air batteries (‘HAB s’): batteries used to power hearing aid devices 
which are very small button -cell shaped spe cialty batteries that are most 
commonly manufactured with a zinc -air chemistry .7  
(15)  The Parties are active in a number of markets ; however, since their activit ies are to a 
large extent complementary, the resulting overlaps are limited. From a horizontal 
perspective, the Parties overlap in the wholesale supply of speciality batteries, and 
more specifically in the wholesale supply of primary alkaline coin batteries to the 
original equipment manufacturer (‘ OEM ’) channel . With respect to vertical links , 
VAG is ac tive in the upstream market for manufacturing and wholesale supply of 
white label8 HAB s to battery brands , while the Divestment Business is active in the 
downstream market of wholesale supply of branded HAB s to the mass retail 
channel.  
4.2. Market for the wholesale supply of branded primary alkaline coin batteries to 
OEMs  
4.2.1.  Market definition  
4.2.1.1.  Relevant product market  
(16)  In the recent Energizer/Spectrum  case, the Commission concluded that consumer 
batteries9 sold to the OEM channel are part of a product market, separate from that 
of consumer batteries sold to the retail channel.10 The Commission also considered 
that consumer batteries sold to the OEM channel should be distinguished  according 
to their rechargea bility ( primary batter ies that are not rechargeable and secondary 
batter ies that are rechargeable), to their shape (cylinder or coin), and to their 
chemistry (alkaline, lithium, silver oxide, zinc carbon, etc).11 With respect to the 
distinction between bran ded and private label consumer batteries, the Commission 
                                                 
7  M.8988 – Energizer/Spectrum Brands , paragraph 9.  
8  In this context, the word ‘white label’ refers to HAB produced by VAG and re -branded by other 
battery companies.  
9  For the purpose of the present Decision, the expression ‘consumer batteries’ is used interchangeably 
with the expression ‘household and specialities batteries’.  
10  M.8988 – Energizer/Spectrum Brands , paragraph 34.  
11  M.8988 – Energizer/Spectrum Brands , paragraph 57.  
 
 
5 concluded that branded consumer batteries are in a separate product market, distinct 
from private label consumer batteries.12  
(17)  The market investigation  has not yielded any  information that would speak against 
applying  the same segmentation  in this case as the one used in Energizer/Spectrum . 
(18)  The Commission therefore considers that the conclusions  referred to in paragraph 
(16) above apply in this case .as well  and that the wholesale supply  of branded 
primary alkaline coin batteries to OEMs constitutes a distinct relevant product 
market.  
4.2.1.2.  Relevant geographic market  
(19)  In the recent Energizer /Spectrum  case, the Commission concluded that the wholesale 
supply of consumer  batteries  (including its various segmentations)13  to the OEM 
channel is EEA -wide in geographic scope.14  
(20)  The market investigation  has not yielded any information that would speak against 
the appl ying the same market definition in this case as  the one used in 
Energiz er/Spectrum . 
(21)  The Commission therefore considers that the conclusions referred to in paragraph 
(19) above apply in this case  as well  and that the geographic scope of the relevant 
market is EEA -wide.  
4.2.2.  Competitive assessment  
(22)  The present section demonstrates th at post -Transaction the Merged Entity will have 
limited market share in the market for the wholesale supply of branded primary 
alkaline coin batteries to OEMs and that a number of credible suppliers would 
continue to compete with the Merged Entity.  
(23)  First,  the combined market share of VAG and the Divestment Business  is small to 
moderate and market share increments are limited. As shown in Table 1, the Parties  
and in particular the Divestment Business ha ve low or moderate  market shares  in the 
market for wholesale supply of primary alkaline coin batteries to OEMs. In 2018, the 
Parties’ combined market  share  in the EEA  has been [10-20]% in volume and [30-
40]% in value . Therefore, if only market shares in volume had to be considered, the 
market for wholesale supply of primary alkaline coin batteries to OEMs would not 
be an affected market  under the terms of Commission Regulation No  802/2004 .15 
With regard to market shares in value, the Transaction would only lead to a small 
market share incr ement (the Divestment Business  only holds [0-5]% of the market) 
despite the fact that the Parties’ combined market share in 2018 has been [30-40]%. 
                                                 
12  M.8988 – Energizer/Spectrum Brands , paragraph 74.  
13  For the purpose of the present Decision, the expression ‘consumer batteries’ is used interchangeably 
with the expression ‘household and speciality batteries’.  
14  M.8988 – Energizer/Spectrum Brands , paragraph 127.  
15  OJ L 133, 30.4.2004, p.  1 (the ‘Implementing Regulation’).  


 
 
8 has a supply agreement with Energizer, which committed  in the Energizer/Spectrum 
Comm itments to supply HABs to the Divestment Business,  for sale under the 
Rayovac  brand , [… ] for […] (extendable for up to […] at the request  of the 
purchaser) . 
(30)  The Transaction  gives rise to no horizontal overlaps. However, it gives rise to a 
vertical relationship and a vertically affected market between (i) V AG’s upstream 
activities in manufacturing and supplying  white  label HAB s to battery brands, and  
(ii) the Divestment Busin ess’ downstream activities in the wholesale supply of  
branded  HAB s to the mass retail channel.  
4.3.2.  Market definition s 
4.3.2.1.  Relevant product markets  
(a) Upstream market: Market for the manufacturing and wholesale supply of 
white label HAB s to battery brands  
(31)  In the recent  Energizer/Spectrum  case, the Commission concluded that HABs belong 
to a product market that is separate from other types of batteries.20 The Commission 
concluded that branded and private label consumer batteries are not part of the same 
product market.21 Finally, t he Commission further concluded that the whole sale 
supply  of branded  HABs  to the mass retail channel constitutes a distinct product 
market (as opposed to e.g. wholesale to the audiologist channel).22 
(32)  The Notifying Party agrees that HABs c onstitute a distinct category of batteries. 
Further, t he Notifying Party submits that the manufacturing and wholesale supply of 
white label HAB s to battery brand  businesses  constitutes a  distinct  relevant product 
market , separate from the downstream market s for the wholesale supply of branded 
batteries to the mass retail or audiologist channel .23 
(33)  The market investigation  has not yielded any  information that would speak against 
defining, in line with what has been done  in the Energizer/Spectrum  decision, 
distinct markets for HABs compared to other batteries  or as to the distinction 
between branded and private label batteries . 
(34)  The results of the market investigation  and the information available to the 
Commission further  support the claim of the Notifying P arty that the manufacture 
and wholesale supply of white label HABs to battery brands constitutes a distinct 
relevant product market .  
(35)  First, the requirements  of battery brand businesses are different from the downstream 
customers they serve . In practice , the demand for white label HABs by battery brand 
                                                 
20  M.8988 – Energizer/Spectrum Brands , paragraph 96, 114 and 135.  
21  M.8988 – Energizer/Spectrum Brands , paragraph 74, 114 and 135.  
22  M.8988 – Energizer/Spectrum Brands , paragraph 106, 114 and 135.  
23  Form CO, paragraph 65.  
 
 
9 businesses  is essentially based not on brands but on the technical qualities of the 
batteries supplied and the commercial terms (such as price) on which they are 
supplied. This is in contrast to the demand of (branded)  HAB s in the mass retail (or 
audiologist) channel where branding plays  a role.24 
(36)  Second, the  structure of demand is different . The number of customers is different 
and different entities are customers in the supply of white label HABs to battery 
brands compared to the customers for such branded batteries in the downstream 
markets that the battery brand businesses serve.  There are but a limited number of 
brand businesses, namely Duracell  and a few others, which make up the demand for 
HABs in the sup ply of white label HABs to batter y brands  in the EEA  (or globally) . 
In contrast, in the supply of branded HABs to for example the mass retail channel (or 
audiologist channel) there is a multitude of different customers in the EEA  (or even 
nationally) .  
(37)  Third, f rom a supply side -perspective, the manufacture and wholesale supply of 
white label HAB s to battery brands requires production facilities for HAB s. That  is 
in contrast to the brand  businesses that do not need manufacturing equipment but 
acquire the batteries from the manufacturer s (either captively or from third parties). 
At the same time, a manufacturer of HAB s would find it difficult to supply the 
batteries directly in the wholesale of branded HABs to the mass retail (or 
audiologist) channel  if it did not have a brand to do that.25 
(38)  Therefore , the Commission concludes that the market for the manufacturing and 
wholesale supply of white label HAB s to battery brands constitutes a  distinct  
relevant product market . 
(b) Downstream market: Market for the wholesa le supply and distribution of 
branded HAB s to the mass retailer channel  
(39)  In the recent Energizer/Spectrum  case, the Commission concluded that HAB s 
constitute  a separate relevant product market, distinct from other consumer 
batteries.26 The Commission also co ncluded that the  supply of HABs to the  mass 
retail channel ( that is  traditional retailers such as grocery stores, do -it-yourself stores 
and other consumer retail stores where a range of consumer products are made 
available) constitutes a separate relevant product market, distinct from supply to the 
specialist hearing aid retail channel (e.g. audiologists).27 Moreover, the Commission 
concluded that branded and private label consumer batteries are not part of the same 
product market.28 
(40)  The Notifying Party agrees with the finding of a distinct market for the wholesale 
supply of branded HABs to the mass retail channel.  
                                                 
24    See for example minutes of a call with a market participant.  
25    See for example minutes of a call with a market participant.  
26  M.8988 – Energizer/Spectrum Brands , paragraph 96, 114 and 135.  
27  M.8988 – Energizer/Spectrum Brands , paragraphs 106, 114 and 135.  
28  M.8988 – Energizer/Spectrum Brands , paragraph 74, 114 and 135.  
 
 
10 (41)  The market investigation has not yielded any information that would speak against 
defining, in line with what has been done in Energizer/Spect rum, a distinct market 
for the wholesale supply of branded HABs to the mass retail channel.  
(42)  The Commission therefore considers that the conclusions reached in 
Energizer/Spectrum and referred to in paragraph (39)  apply for the purposes of th is 
case as well  and that the wholesale supply of branded HABs to the mass retail 
channel constitute s a distinct re levant product market.  
4.3.2.2.  Relevant geographic markets  
(a) Upstream Market: Market for the manufacturing and wholesale supply of 
white label HAB s to battery brands  
(43)  The Notifying Party submits that the market for manufacturing and wholesale supply 
of white label HAB s to battery brands is global in geographic scope. In support of its 
submission , the Notifying Party explains that  there are significant trade flows and 
that a large part of the HABs it manufacture s in its plant  in Germany is exported 
outside the EEA to customers that are typically active globally and have 
headquarters outside the EEA.29 
(44)  The results of the  market investigation nonetheless suggests that geographic markets 
are not necessarily global  but that the market could be EEA -wide in scope. In 
particular, EEA -customers’ quality expectations are to a certain extent  higher than in 
other regions , which is reflected by the fact that certain  Asian supplie rs are currently 
not able to produce the quality required by customers  in the EEA.30  
(45)  In any event, it is not necessary for the purposes of th is decision to conclude on the 
exact scope of the relevant geographic market for the manufacture and wholesale 
supp ly of HABs to battery brands as the outcome of the competitive assessment 
remains the same regardless of whether a global or EEA -wide market was 
considered.  
(b) Downstream : Market for the wholesale supply and distribution of branded 
HAB s to the mass retailer c hannel  
(46)  In the  recent  Energizer/ Spectrum case , the Commission concluded that the market 
for the wholesale supply of branded HAB s to the mass retail channel is national in 
scope.31  
(47)  The market investigation has not yielded any information that would speak against 
defining, in line with what has been done in Energizer/Spectrum , the market as 
national in scope.  
                                                 
29  Form CO, paragraphs 75 –78. 
30  See for example replies t o question 7 of Questionnaire to Battery Companies.  
31  M.8988 – Energizer/Spectrum Brands , paragraphs 125.  



 
 
14 4.3.4.  Competitive assessment: input foreclosure  
4.3.4.1.  Ability to foreclose   
(55)  According to the Non -horizontal Mergers Guidelines32, vertical mergers can lead to 
competition concerns if the parties to this concentration (the ‘ merged entity ’) have a 
significant degree of market power in the upstream market.33 In this case, a reduced 
access of upstream products and services might negativel y affect the availability of 
inputs for the downstream market.34 
(56)  The Commission considers that VAG would have the ability to foreclose its 
downstream competitors in the supply of branded HABs to the mass retail channel 
from their access to HABs (input foreclosure).  
(57)  First, VAG has a significant market position in the upstream market for the supply of 
white label HABs to battery brands. As noted in Section  4.3.3 , in the EEA VAG is 
the only manufacturer  of HAB s active in supplying HAB s to battery brands . Further, 
even if considering a potential global upstream market, its market share in 2018 
would be very high at [80-90]% in revenue and in [80-90]% in volume. 35 
(58)  This suggests that VAG’s market power is not limited to the EEA, but is rather 
global.  Also, a s will be explained in paragraph (64), there is a certain degree of 
product differentiation for HAB s, and battery brands consider that the HAB s 
produced by the VAG and Energizer are of superior quality, compared to Asian 
manufacturers. Therefore , even if the  Asian suppliers have some but limited market 
share globally, the competitive constraint to VAG that they present is likely less than 
what their (already limited market share) suggests.   
(59)  Second, for the battery brand businesses  active in wholesale supply o f branded 
HAB s to the mass retail channel, the supply of HABs is essential ; they  do not have 
the manufacturing capabilities to produce HABs. Battery brands leverage their brand 
image in consumer batteries to distribute their branded HABs to retailer but ar e 
entirely dependent on VAG for the supply of HABs.  
(60)  Third,  it is not likely that Energizer would become a significant merchant supplier of 
white label HABs battery brands. Energizer, which also manufactures HAB s and 
supplies them in  the EEA, uses most of the manufactured HAB s captively for its 
downstream businesses . The Notifying Party  claim s that Energizer […] and that 
Energizer […] . According to the Notifying Party, Energizer has also […]. 
Furthermore  according to the Notifying Pa rty Energizer already supplied […] with 
                                                 
32  Commission Guidelines on the assessment of non -horizontal mergers under the Council Regulation 
on the control of concentrations between undertakings, OJ C 265, 18 October 2008, p. 6 (‘Non -
Horizontal Merger Guidelines’).  
33  Non-horizontal Mergers Guidelines, paragraph 35.  
34  Non-horizontal Mergers Guidelines, paragraph 36.  
35  Form CO, paragraph 91.  
 
 
15 approx. […] units of white label HAB s at the global level (though not in the EEA)  in 
the year 2018.36 
(61)  Nonetheless, the results of the m arket investigation show that none of the 
downstream market participants have chan ged their HAB s supplier in the last five 
years .37 In addition, referring to potential supply from another HAB s manufacturer s, 
a market participant explained  that former Rayovac -Spectrum (now Energizer) 
indicated a lack of interest in supplying high quality batteries equivalent to those 
supplied by VAG. A customer  explained, ‘We had a contact with Rayovac but its 
HAB didn't meet our requirements.’38 A market pa rticipant also explained that 
Rayovac was not willing to supply the highest quality batteries ‘The only alternative 
supplier of HAB of similar quality of VAG is Spectrum/Rayovac. However, Spectrum 
indicated a lack of interest in supplying HAB to the Compan y the required quality 
products. Specifically, these negotiations fell through because they only offered an 
inferior product (not of their best quality and below [name of market participant] ’s 
standards)’ .39 
(62)  Therefore, it appears that Energizer if anything is likely not a supplier that 
downstream customers could turn to in order to avoid input foreclosure efforts by 
VAG.  
(63)  Fourth, HAB s manufacturers established outside the EEA do not represent a viable 
source of supply or competitive constraint on VAG in the s upply of white label 
HABs to battery brands.  
(64)  Such suppliers make currently no sales in the EEA and, even if considering the 
global level, their market shares are limited. Moreover, the results of the market 
investigation suggest that these suppliers – main ly Chinese – are not able to deliver 
sufficient quality to be considered as viable alternative. A market participant 
explains:  ‘[t]he HAB batteries manufactured by Rayovac and VAG are by far of 
superior performance and quality and reliability in comparison  with other products. 
Asian  manufacturers able to supply HAB today, cannot match the battery 
performance and experience important quality issues in terms of leakage and battery 
cells corrosion.’40 Another market participant concurs: ‘We think HAB produced by 
VAG and Rayovac have better quality than those produced by Chinese 
manufacturers.’ 41 In any event, even if the sales outside the EEA are considered and 
therefore sales of non -EEA manufacturer in non -EEA countries are considered, 
VAG’s market share in 20 18 would be as high as [80-90]% in terms of number of 
units sold, [80-90]% in terms of revenues.42   
                                                 
36  Form CO, paragraph 223  
37  Questionnaire  to customers, question 9.  
38  Questionnaire to customers, question 10.  
39  Minutes of a call with a customer  
40  Questionnaire to customers, question 11.  
41  Questionnaire to customers, question 11.  
42  Form CO, paragraph 87.  
 
 
16 (65)  With respect to the possibility of Asian suppliers developing their quality, a market 
participant explained that Asian HAB s manufacturers, which already enj oy 
reasonable economies of scale but lack an acceptable level of quality required in the 
EEA could develop the capabilities to produce higher quality batteries but that it 
would only be in the long term:  ‘In principle, Asian manufacturers that currently 
produce HAB of lower quality might improve the quality of their HAB, but this of 
course is not a short -term possibility’ .43 
(66)  Fifth, non -vertically integrated HAB s battery brands cannot establish their own 
production capabi lities  at competitive terms or  within short period of time .  
(67)  The Notifying Party claims that all its HAB s customers used to manufacture HABs  
batteries and could rebuild their own production lines within 1.5 to 2  years.44 The 
Notifying Party nonetheless  acknowledges that the reason for t hese battery brands to 
have discontinue d their HAB s production is the lack of economy of scale, which 
makes the business not economically viable.  
(68)  Nonetheless, the results of the market investigation indicate that a hypothetical new 
HAB s production line in the EEA would not be economically viable because it 
would not be able to meet the economies of scales required to be competitive on the 
market.45 A market participant explains that developing the upstream capabilities to 
be able to produce HAB s internally i s not currently considered as an alternative : 
‘[t]he Company considers that the investment for becoming a vertically integrated 
HAB supplier (i.e. to start manufacturing its own HAB battery) is simply not an 
economically feasible option at the current stag e.’ 
(69)  Furthermore, the Commission notes that even if a downstream competitor to VAG 
could set up its own production, it would not be adequately immediate to counter the 
anticompetitive effects of the Transaction. The Commission refers in this respect to 
the Notifying Party's own submission of it taking 1.5 to 2 years to set up such 
production capability.  
(70)  Therefore, the Commission considers that VAG likely has the capability to engage 
into input foreclosure. Battery brand businesses that supply customers in th e EEA 
are likely not able to turn to alternative suppliers to counter such behaviour by VAG. 
VAG is currently the only supplier in the EEA. While there globally are a number of 
other suppliers, their market shares – even combined – are limited and they are  likely 
not able to offer such quality HABs that VAG is and that are required by ultimate 
customers in the EEA.  
4.3.4.2.  Incentive to foreclose   
(71)  According to the Non -horizontal Mergers Guidelines, the incentive of a firm to 
foreclose its customers depends on the degree to which the foreclosure would be 
                                                 
43  Replies to question 7 of Questionnaire to customers.  
44  Form CO, paragraph 92.  
45  Minutes with a competitor.  
 
 
17 profitable.46  ‘Essentially, the merged entity faces a trade -off between the profit lost in 
the upstream market due to a reduction of input sales to (actual or potential) rivals and 
the profit gain, in  the short or longer term, from expanding sales downstream or, as the 
case may be, being able to raise prices to consumers. The trade -off is likely to depend 
on the level of profits the merged entity obtains upstream and downstream. Other things 
constant, the lower the margins upstream, the lower the loss from restricting input sales. 
Similarly, the higher the downstream margins, the higher the profit gain from increasing 
market share downstream at the expense of foreclosed rivals’ .47 
(72)  The present section dem onstrates that the Merged Entity would have an incentive to 
foreclose battery brands active in the downstream market for wholesale supply and 
distribution of branded HABs to the mass retailer channel  because the profit lost due to a 
reduction of input sale s to these customers  would be smaller than the profit gained in the 
downstream market.  
(a) The Notifying Party’s argument  
(73)  The Notifying P arty submits that it would not be able to capture an adequate amount 
of sales at the downstream market to make input forecl osure beneficial  to it . 
According to the Notifying Party, its assumption is that  ultimate customers who lose 
their current  HAB s brand  will purchase from the remaining suppliers  (brands)  
according to their current share in the market. This will lead to a […]% recapture 
ratio for VAG -Rayovac on the downst ream market. The critical recapture ratio 
defined by the parties as ‘ the smallest fraction of sales that would need to be 
recaptured from white label HAB sales to the foreclosed battery brands to Rayovac 
bran ded HAB sales in the mass retail channel for the input foreclosure strategy to be 
profitable for the combined entity ,’ would be […]%.  
(74)  However the Notifying Party claim s that the ‘ [t]he structure of white label supply 
does not allow targeting foreclosure to a specific geography or channel’  and, as a 
result , ‘[t]he cost of foreclosure is not limited to upstream sales in the EEA as 
battery brands purchase from VAG through supply agreements negotiated at a 
global level. ’ The Notifying P arty then concludes tha t ‘given that about  […]% of 
VAG’s white label HAB sales volume to battery brands is in the EEA. Taking this 
into account, the estimate of the actual recapture rate is about […].’ 
(b) The Commission ’s assessment  
(75)  For the following reasons, the Commission conside rs that VAG would, post -
Transaction, likely have the incentive to engage in input foreclosure.  
(76)  First, as a result of the transaction, VAG will become one of the leading downstream 
players by holding a [30-40]% market share in value in the distribution of H ABs in 
the mass retail channel  in the EEA as a whole,  as evidenced in Table 4 , with the 
market share being significantly higher in some Member States . VAG will compete 
                                                 
46  Non-horizontal Merger Guidelines, paragraph 40.  
47  Non-horizontal Merger Guidelines, paragraphs 40 and 41.  


 
 
20 in the downstream market prices, it is  not likely that its incentives would change as a 
result of the Transaction.   There is thus no likelihood of ano ther supplier 
counteracting an input foreclosure strategy.  
(84)  It further follows that, were VAG instead of a blocking supplies to increase its prices 
at the upstream level, customers would likely have no alternative but to either 
increase their prices at the downstream level – allowing VAG to increase its prices 
too – or to absorb the additional cost by reducing their own margin.  
(85)  Fourth , the actual recapture ratio is likely increased by some customers in the 
wholesale supply of branded HABs in the retail chan nel requiring suppliers to 
provide a complete portfolio of products.  Therefore , having an HAB brand allows a 
supplier  to bid for more tender s – including those that require a full portfolio of 
batteries including HAB s. A market participant explains: ' Moreo ver, since VAG 
would acquire the VARTA/Spectrum portfolio of batteries that are sold in the mass 
retail channel and it would be competing with the Company for these sales. Indeed, 
it is important to understand that whereas direct negotiations with several branded 
battery suppliers are still a common phenomenon in the grocery retail channel, 
tenders of various kinds are becoming increasingly important in all other channels. 
Such tenders are sometimes for the whole battery category or the whole store and 
thus, if a competitor is not able to supply hearing aids batteries, such could not 
appropriately compete for the tender. ’ 52 
(86)  Fifth , contrary to what the Notifying Party argues, the market investigation indicated 
that the Merged Entity would be able to identify HABs that its customers eventually 
sell in the EEA and to  price discriminate between HAB s sold in different regions of 
the world. Therefore, in case of input foreclosure  of EEA customers , the Merged 
Entity loss of profits would  be limited to those HAB s ultimately sold to the EEA 
markets.  This is for the following reasons.  
(87)  In the first pla ce, HAB s manufactured for the EEA market have some 
distinguishable features in terms of technical specifications and packaging.  A market 
participant explains:  ‘Battery labe ls and packaging should need to be adapted to the 
European requirements in terms of safety warnings, language translations, disposal 
advice. ’53 
(88)  In the second place,  it has been suggested in the market investigation that VAG 
would have the ability to monitor  where its customers ultimately sell their products. 
A market participant explains: ’There is no monitoring per se of the sales we make in 
the non -audiologist channel today as we acquire the products manufactured as 
private label goods for us and then coul d freely resell them in Europe and Africa. 
However, VAG has certainly good market knowledge and probably tracks general 
market share and presence through external sources like Nielsen, etc. ’54 
                                                 
52  Minutes of a call with a market participant.  
53  Minutes of a call with a market participant.  
54  Questionnaire to battery companies, question 8.  
 
 
21 (89)  Therefore, the Commission considers  that the Merged Entity would  likely have the 
incentive to engage in input foreclosure relating to the manufacture and supply of 
white label HABs to battery brands as such a behaviour would likely be profitable to 
it. 
4.3.4.3.  Overall impact  
(90)  A merger can raise competition concerns if input foreclosure would lead to a price 
increase in the upstream market.55 The higher the proportion of the proportion of the 
rivals which would be foreclosed on the downstream market, the more likely the 
merger can be expecte d to result in a significant price increase in the downstream 
market and, therefore, to significantly impede effective competition therein.56 
(91)  For the following reasons, the Commission considers that input foreclosure by VAG 
post-Transaction would have an ov erall impact in the market.  
(92)  First, the Merged Entity’s input foreclosure would impact a large part of  its 
competitors  and a significant share of overall supply  in the downstream market for 
the wholesale supply of branded HAB s to the mass retailer channel.  As already 
explained in Section xxx, all  but one major downstream competitor  in the EEA – 
Energizer – relies on HABs manufactured by VAG . As set out in Table 4, even if the 
analysis of the market were carried out on the wider EEA  level ,57 the cumulated 
market shares of the Parties’ downstream competitors  excluding Energizer is [40-
50]% in volume and [30-40]% in value .  
(93)  Second, in case of input foreclosure, only Energizer would be able to produce, as a 
vertically integrated player, adequate alte rnative HAB s. All the main  companies 
active downstream, excluding Energizer, are fully dependant on the supply of HAB s 
by VAG.  Therefore, in case of input foreclosure, the Merged Entity would have to 
compete only with Energizer in the downstream market for  the wholesale supply and 
distribution of branded HAB s to the mass retailer channel. Moreover, by itself the 
foreclosure will be profitable for VAG as explained in paragraphs (76) to (88).  
(94)  Third, the result of an input foreclosure behaviour by the Merged Entity  would lead 
to a literal  duopoly  at the downstream market, conducive to higher prices than a 
market with more market participants. In a question to Herbert Schein, Chairman of 
the Executive Board of VARTA AG during an investor call  an analyst states : 
’exclusive supply and licence agreement for Rayovac -branded hearing aid batteries 
produced in the UK and the US. Those are batteries from your direct competitor and 
you have a majority market share in what is almost a duopoly in Europe’. 58  
                                                 
55  Non-horizontal Mergers Guidelines, paragraph 47.  
56  Non-horizontal Mergers Guidelines, paragraph 48.  
57  Although the geographic market definition is national -wide, an EEA -wide assessment complements 
the national analysis and provides a better overview of the cumulated impact of the input foreclosure 
on each of the EEA markets.  
58  Reply to RFI 17, ‘VARTA AG Update Call 29 May 2019, 10:00 am CEST’.  
 
 
22 4.3.5.  Conclusion on input foreclosure  
(95)  For the reasons set out  in Section 4.3.4  and considering all evidence available to it , 
the Commission concludes that, post -Transaction, VAG would likely have the ability 
and incentive to engage in input foreclosure, and that such foreclosure would have 
an overall impact in the downstream market for the wholesale supply of branded 
HABs to the mass retail channel.  
(96)  The Transaction, as notified, thus raises serious doubts as to its compatibility with 
the internal market due to an input  foreclosure related to the vertical link between (i) 
the upstream market for the manufacture and supply of white label HABs to battery 
brand businesses and (ii) the downstream market for the supply of branded HABs to 
the mass retail channel.   
5. VAG’ S MARKET  POWER IN OTHER MARK ETS 
(97)  During the market investigation, one market participant expressed a concern that the 
Transaction would increase VAG’s market power overall in  batteries. According to 
this market participant, such an overall market power would allow VAG to foreclose 
its customers in markets that are not affected by the Transaction. More specifically, 
this market participant is concerned that VAG might stop supplying or supplying at 
less favourable conditions rechargeable batteries for hearing aid devi ces.59 
(98)  Nonetheless, the information made available to the Commission does not allow the 
conclusions that the Transaction would give rise to such competition concern. 
Moreover, a s this market participants explained, the Divestment Business is not 
active in t he supply of rechargeable batteries for hearing aids. Therefore, post -
Transaction, the incentives and ability of VAG to foreclose its customers in th ese 
markets would likely not change  materially . Accordingly, the Commission does not 
consider that the Tran saction would raise serious doubts with respect to rechargeable 
hearing aid batteries.  
6. PROPOSED REMEDIES  
6.1. Introduction  
(99)  On 12 November 2019 the Notifying Party submitted commitments (‘Initial 
Commitments’), pursuant to Article 6(2) of the Merger Regulation , in order to 
remove the serious doubts identified by the Commission and to render the 
Transaction compatible with the internal market and the functioning of the EEA 
Agreement.  
(100)  On 13 November 2019, t he Commission launched a market test on the Initial 
Commit ments . 
                                                 
59  Minutes of a call with a customer on 27 November 2019.  
 
 
23 (101)  On 21 November 2019, t he Commission reported to the Notifying Party on the 
results of the market test.  
(102)  On 25 November 2019, t he Notifying Party submitted revised commitments , which 
they resubmitted in a clarified version  on 2 December 2019  (‘Final 
Commitments’).   
6.2. Initial Commitments  
6.2.1.  Description of the Initial Commitments  
(103)  The Initial Commitments consisted of the Notifying Party committing to supply 
HABs globally to any undertaking currently or potentially active in the wholesale 
supply of HA Bs under its own brand, such brand being used for batteries of any 
kind or for hearing aid de vices, provided that the customer would purchase a 
certain minimum volume of HABs from the Notifying Party.  
(104)  The term of the supply obligation under the Initial Com mitments was  set to  ten 
(10) years from the Commission’s decision. However, any supply agreements with 
customers would have been made for an initial five -year term (in maximum up to 
the ten years from the Commission’s decision) whereafter a monitoring trus tee 
would have annually reviewed the need to extend the agreement with the particular 
supplier, given the prevailing market situation at that time.  
(105)  The Initial Commitments further set other key terms of the supply , among others 
price, volumes and quality. As to price , the Initial Commitments provided a ceiling 
price based on the prices previously charged from a given customer or, in case of a 
new customer, based on the prices charged for existing customers, such ceiling 
prices being subject to annual indexa tion on the basis of inflation and other rules 
set out in the Initial Commitments. As to volumes, a threshold was set in the Initial 
Commitments at 120% of the volumes supplied to a given customer in the 
preceding year, with the possibility for a monitorin g trustee to review requests for 
any excess quantities. As to quality, the Initial Commitments provided certain 
standards that the HABs to be supplied by the Notifying Party would need to fulfil 
and certain further guarantees of a maintained quality.  
(106)  Further, the Initial Commitments provided for an obligation for the Notifying Party 
to supply any possible new products that it might start to produce during the term 
of the Initial Commitments.  
6.2.2.  Notifying Party’s position  
(107)  According to the Notifying Party, the Initial Commitments are clear -cut and they 
would eliminate any serious doubts of competition concerns related to the 
Transaction.60  
                                                 
60  Form RM.  
 
 
24 6.2.3.  Results of the market test  
(108)  On balance, t he results of the market test  were positive and they  suggest that the 
Initial Commit ments are in principle capable of the removing the serious doubts 
identified by the Commission.  
(109)  In particular, the majority of market participants taking a position submit that the 
Initial Commitments would ensure their continued access to HABs in adequat e 
volumes  and reasonable terms .61 The results of the market test further show that 
most market participants responding do not expect significant increases in the overall 
market demand and, even the market participant that is expecting demand increases, 
expe ct them to be at most in line with the 120% threshold or lower.62 
(110)  Further, the results of the market test suggest that the term of the Initial 
Commitments are adequate to ensure that customers currently active in the wholesale 
of branded HABs to th e mass re tail channel can develop  alternative supply sources 
for HABs of adequate quality before the end of the duration of the Initial 
Commitments.63 
(111)  Finally, multiple market participants indicated  that they would be  interested in 
entering into a supply agreement with the Notifying Party under the terms set out in 
the Initial Commitments either as they are, or subject to certain limited 
amendments.64 
(112)  Nonetheless, market participants referred to a limited number of tech nical 
clarifications and improvements  to the Initial Commitments that they suggested were 
necessary to ensure the effectiveness of the remedies. The clarifications and 
improvements mentioned  relate to for example indexation of the price, packaging 
options made available and an explicit confirmation that – in order to achieve 
adequate volumes – customers can sell the HABs sourced from the Notifying Party 
to any downstream customer including those not active in the mass retail channel.65 
6.2.4.  Commission’s assessment  
(113)  The Commission considers that the Initial Commitments are in principle capable of 
removing the serious doubts raised by the Transaction. This is because:  
(114)  First, the Final Commitments cover supplies to all existing customers as well as to 
any pot ential new entrants that are active in nearby markets such as batteries or 
hearing aid devices.  The Commission considers that the inclusion in the Initial 
Commitments of all current suppliers as well as any potential supplier already active 
in nearby marke ts increases the likelihood that competitive conditions in the 
downstream market are not made worse because of the Transaction.  
                                                 
61  See for example replies to questions 1, 4, 10 and 11 of the Market Test.  
62  Replies to question 8 of the Market T est. 
63  Replies to question 3 of the Market Test.  
64  Replies to question 2 of the Market Test.  
65  See for example replies to questions 1, 4, 5, 9, 11 and 20 of the Market Test.   
 
 
25 (115)  Second, the results of the market investigation are overall positive. As explained in 
Section 6.2.3 , market participants see th at the Initial Commitments would ensure 
that the Initial Commitments would ensure a continued access to HABs in adequate 
volumes and at reasonable terms , including price and quality . 
(116)  Third, the term of the Initial Commitments and the duration of the supply  obligation 
on the Notifying Party appears adequate  to allow customers to develop alternative 
supply sources, for example by working with the suppliers whose quality at present 
is not adequate. This is also  in line with the replies to the market test expla ined in 
Section 6.2.3 . The Commission  further considers that  it is in order to incentivise 
customers to seek alternative supply sources without delay and not to unduly rely on 
the commitments for longer than necessary. This purpose appears to be adequately  
served by the fact that the supply agreements are initially concluded for five years  
instead of the whole duration of the Initial Commitments (10 years),  and that 
extensions are subject to a review.  
(117)  Fourth, it appears that the volume thresholds set in th e Initial Commitments are 
adequate to ensure that the Notifying Party is obliged to supply HABs not only in 
line with the overall market growth but to allow for market share growth by its 
downstream competitors in the supply of branded HABs to the mass ret ail channel. 
In particular, the Initial Commitments provide that the Notifying Party shall supply a 
given customer with at least 120% of the customer’s demand in the previous year. 
This allows for a 20 -% guaranteed supply increase  every year compared to the 
previous , at the request of the customer . As explained in Section 6.2.3 , market 
participants generally consider the volume threshold to be adequate, and market 
participants largely expect the overall market demand to grow less than the 
guaranteed 20 -% annual increase in supplies set in the Initial Commitments.  The 
threshold would thus allow customers to not only grow in line with overall expected 
market expansion but to gain market share.  
(118)  Fifth, the interest by market participants to enter into supply r elationships with the 
Notifying Party under the conditions of the Initial Commitments, as explained in 
Section 6.2.3 , supports the finding that the conditions of supply laid down in the 
Initial Commitments are suitable.  
(119)  Sixth, while the market test reveale d some shortcomings in the Initial Commitments, 
they are not of such magnitude that they would call into question the suitability and 
effectiveness of the Initial Commitments to, in principle, remove the competition 
concerns the Commission has identified.  The shortcomings relate to, for example, 
indexation of the ceiling price, the types of packaging that the customers could 
acquire the HABs with and clarification on how the volume threshold is calculated.  
(120)  Therefore, the Initial Commitments would in princip le ensure that downstream 
competitors do not face disruptions, higher prices or reduced quality in the supply of 
hearing aid batteries they offer to customers while they develop alternative sourcing 
options. The commitments would also allow other companies  to enter the market 
relying on similar supply conditions from the Notifying Party.  
 
 
26 (121)  Nonetheless, the Commission considers that the shortcomings referred to by market 
participants in the market test, even if limited, relate to key conditions of supply such 
as price, packaging and volumes . They must  thus be addressed in order for  the 
commitments to be effective from all points of view.  
6.2.5.  Conclusion on the Initial Commitments  
(122)  Based on the considerations explained in 6.2.4  and in light of the results of the 
mark et test and all information available to it, the Commission concludes that the 
Initial Commitments were in principle capable of removing the identified serious 
doubts, subject to implementation of the necessary improvements identified.  
6.3. Final Commitments  
6.3.1.  Description of the Final Commitments  
(123)  The Final Commitments , provide the following improvements over the Initial 
Commitments:  
 The annual indexation of the ceiling price was amended based on the 
feedback from the market test;  
 An amendment was added to clarify that the Notifying Party will supply 
customers with all types of packaging it uses in its own downstream 
businesses;  
 A clarification was added to explain customers are allowed to see the HABs 
supply by the Notifying Party in any downstream sales channel  (including to 
mass retail but to others as well) , and that the volume thresholds are 
calculated on the basis of such total supplies; and  
 Certain other technical amendments  and clarifications were added . 
6.3.2.  Commission assessment and conclusion on the Final Commitments  
(124)  The Commission notes that the Final Commitments address all the issues identified 
in the Initial Commitments and put forward the improvements found necessary by 
the Commission.  
(125)  Overall, the Final Commitments ensure that downstream competitors do not face 
disruptions, higher prices or reduced quality in the supply of hearing aid batteries 
they offer to customers while they develop alternative sourcing options.  The 
commitments also allow other companies to enter the market relying on similar 
supp ly conditions from the Notifying Party. The Final Commitments also ensure that 
customers can acquire the HABs with all types of packaging used by the Notifying 
Party itself, and that the customers are able to  acquire adequate volumes of HABs 
from the Notif ying Party and to  sells them in any downstream channel.  
(126)  Therefore, the Final Commitments entered into by the Notifying Party are suitable 
and sufficient to remove the competition concerns identified by the Commission and 
 
 
27 to thus eliminate the serious doubt s as to the compatibility of the Transaction with 
the internal market.  
7. CONDITIONS AND OBLIGA TIONS  
(127)  The commitments in section  B of the Annex constitute conditions attached to this 
decision, as only through full compliance therewith can the conditions of 
competition be preserved . The other commitments set out in the Annex constitute 
obligations, as they concern the implementing steps which are necessary to achieve 
the modifications sought in a manner compatible with the internal market.  
8. CONCLUSION  
(128)  For the above reasons, the Commission has decided not to oppose the notified 
operation as modified by the Final Commitments and to declare it compatible with 
the internal market and with the functioning of the EEA Agreement, subject to full 
compliance with the con ditions in section  B of the commitments annexed to the 
present decision and with the obligations contained in the other sections of the said 
commitments. This decision is adopted in application of Article 6(1)(b) in 
conjunction with Article 6(2) of the Mer ger Regulation and Article 57 of the EEA 
Agreement.  
(129)  This decision is without prejudice to the Commission's approval of VAG as a 
suitable purchaser of the Divestment Business  in the case M.8988 – 
Energizer/Spectrum Brands  and of the Commission's assessment of whether the 
terms of the divestiture are consistent with the Commission's decision and the 
commitments in that case . 
For the Commission  
 
 
(Signed)  
Margrethe VESTAGER  
Executive Vice -President  
 
 
 
1 
  
 
 
Dated 2 December 2019  
 
Non-confidential version  
 
 
 
Varta Aktiengesellschaft  
 
 
 
 
CASE NO M.9449 — VAG / Varta (Consumer Battery, Chargers and Portable Power and 
Lighting Business)  
 
Commitments to the European Commission  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2 
 COMMITMENTS TO THE EUROPEAN COMMISSION  
 
Pursuant to Article 6(2) of Council Regulation (EC) No 139/2004 ( Merger Regulation ), VARTA 
Aktiengesellschaft and any of its Affiliated Undertakings ( VAG  or Notifying Party ) hereby enters 
into the following Commitments ( Commitments ) vis -à-vis the European Commission 
(Commission ) with a view to rendering the acquisition by VAG of sole control of Varta Consumer 
Battery, Chargers and Portable Power and Lighting Business  (Varta Business ) (Concentration ) 
compatible with the internal market and the functioning of  the EEA Agreement.  
This text shall be interpreted in light of the Commission’s decision pursuant to Article 6(1)(b) of 
the Merger Regulation to declare the Concentration compatible with the internal market and the 
functioning of the EEA Agreement ( Decisio n), in the general framework of European Union law, 
in particular in light of the Merger Regulation, and by reference to  the Commission Notice on 
remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission 
Regulation (EC) No 802/2004  (Remedies Notice ). 
 
Section A.  Definitions  
 
1. For the purpose of the Commitments, the following terms shall have the following meaning:  
 
Affiliated Undertakings : undertakings controlled by the Notifying Party and/or by the ultimate 
parents of the Notifying Party, whereby the notion of control shall be interpreted pursuant to 
Article 3 of the Merger Regulation and in light of the Commission Consolidated Jurisdictional 
Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between 
undertakings (the " Consolidated Jurisdictional Notice ").  
 
Confidential Information : any business secrets, know -how, commercial information, or any 
other information of a proprietary nature that is not in the public domain.  
  
Conflict of Interest : any confli ct of interest that impairs the Monitoring Trustee's objectivity and 
independence in discharging its duties under the Commitments.  
 
Customer : any undertaking currently or potentially active in the wholesale supply of HAB under 
its own brand ( Customer Own -Branded HAB ), such brand being used for batteries of any kind 
or for hearing aid devices. Undertakings failing to satisfy annual Product purchases of at least 
 
3 
 three million Customer Own -Branded HAB and failing to resell substantial part of them in the 
EEA do not qualify as Customers.  
 
Customisation : the process through which Customers may obtain from the Notifying Party 
Product customisation, including with respect to packaging and specification on terms specified in 
the Supply Agreement. For the avoid ance of doubt, with respect to packaging, Customers shall be 
free to demand either customised packaging options in accordance with established market 
standards or any packaging option sold by the Notifying Party.  
 
Effective Date : the date of the adoption o f the Decision.  
 
Excess Quantities : the amount of Products exceeding 120% of the Notifying Party’s volumes of 
Products actually supplied further to the Supply Agreement with any given Customer during the 
prior fiscal year, or in case of Existing Customers,  the amount exceeding 120% of Notifying 
Party’s volumes of Products actually supplied in the fiscal year preceding entering into the Supply 
Agreement, with such 120% threshold set on a rolling annual basis during the Term. To the extent 
the Notifying Party  sells Products on its own account under a licence agreement entered into with 
the Customer and the Customer intends  to sell those Produc ts under its own brand because of 
termination or expiry of the license or other cause, those quantities shall not be co nsidered Excess 
Quantities. Those volumes, even if sold by the Notifying Party under license, shall be accounted 
together with Products actually supplied when computing the 120% threshold for Excess 
Quantities.  
 
HAB : primary batteries for use in hearing a id devices (as opposed to other consumer batteries).  
 
Indexation – the Supply Agreement will allow for the Notifying Party and a Customer to 
negotiate in good faith for the Price to be adjusted at the end of each consecutive period of 12 -
months following the conclusion of the Supply Agreement in order to reflect significant increases 
or decreases in its cost base (for example, due to an increase in raw material prices, development 
or labour costs or to adequately reflect Customer -specific efficiencies and changes in 
Customisation). T he Monitoring Trustee will,  subject to consultation with the Commission , 
determine whether any such adjustment is reasonable. Further, to compensate for the innovation 
expenses and costs the Notifying Party had to incur to devel op the New Products from which 
Customer will benefit, the Price shall be reasonably increased by Notifying Party; the Monitoring 
Trustee has to approve such increased Price for New Products, subject to consultation with the 
Commission and taking into accou nt whether the benefit of the innovation objectively justifies the 
Price increase. In consultation with the Commission, the Monitoring Trustee shall also determine, 
whether such adjustment reasonably reflects a decrease of costs that may arise due to the 
introduction of a certain innovation.  
 
4 
  
Monitoring Trustee : one or more natural or legal person(s) who is/are approved by the 
Commission and appointed by the Notifying Party, and who has/have the duty to monitor the 
Notifying Party’s compliance with the cond itions and obligations attached to the Decision.  
 
New Products: HAB similar to the Products, in relation to which quality or functionality has been 
changed , provided that the change in quality or functionality  is used by the Notifying Party in any 
of the HAB manufactured by it.  
 
Price : the ceiling price  at which the Products are offered to be sold to the Customer, which shall 
be the average per -unit price at which the Notifying Party (directly and indirectly) supplied the 
Customer the Products during the period immediately preceding the conclusion of the Supply 
Agreement with the Customer of either: (i) the last 12 -months; or (ii) the last three years ( Existing 
Customers ), whichever is more favourable for the Customer. For Customers who have not been 
suppl ied by the Notifying Party for periods of at least three years immediately preceding the 
conclusion of the Supply Agreement ( New Customers ), the Notifying Party shall submit a 
proposed Price determined on bona fide  and non -discriminatory commercial conditions to the 
Monitoring Trustee. The Monitoring Trustee shall, subject to consultation with the Commission, 
assess the issue taking into account the conditions offered to Existing Customers (including 
Customisation a nd volumes) and make a determination of the Price. The Notifying Party shall 
disclose to the Monitoring Trustee all necessary information for such determination. With respect 
to Excess Quantities, the Price shall be set further to good faith discussions be tween the Notifying 
Party and the Customer, taking into account any potential cost increase involved in supplying such 
Excess Quantities.  
 
Products : HAB  manufactured by VAG as defined, specified and/or supplied further to the Supply 
Agreement. New Product s, should these be developed during the Term, will be included as 
Products.  
Supply Agreements : the agreements to be entered into between the Notifying Party and the 
Customer , according to which the Notifying Party shall be obliged to supply the Products to  the 
Customer during the Supply Agreement Term. The Notifying Party shall agree on a form of the 
Supply Agreement with the Monitoring Trustee, subject to consultation with the Commission. 
Any material deviations from the Supply Agreements shall be approved  by the Monitoring 
Trustee, subject to consultation with the Commission.  
 
Supply Agreement Expiry : termination or expiry of the Supply Agreement Term or the absence 
of the Supply Agreement Term, upon expiry, being further extended. As part of the Initial Review 
and of each Subsequent Review (if any), the Monitoring Trustee shall, subject to consultation with 
 
5 
 the Commission,  compile a report containing a recommendation as to whether Supply Agreement 
Expiry should take place, taking into account the prevaili ng competitive dynamics at the time.  
 
Supply Agreement Term : the term of any given Supply Agreement, commencing as from the 
Supply Agreement Commencement Date  for an initial period of 5 years. The Supply Agreement 
Term shall be first reviewed by the Monit oring Trustee 5 years after the Supply Agreement 
Commencement Date ( Initial Review ). Provided that, following the Initial Review, Supply 
Agreement Expiry has not taken place, the Supply Agreement Term of the Supply Agreement in 
question shall be extended b y one year. Further reviews by the Monitoring Trustee ( Subsequent 
Reviews ) are to be carried out starting 6 years after the Supply Agreement Commencement Date 
and at yearly intervals thereafter, the last Subsequent Review being possible 9 years after the 
Supply Agreement Commencement Date provided that, at each Subsequent Review, Supply 
Agreement Expiry may take place under the circumstances set out herein. For the avoidance of 
doubt, the duration of the Supply Agreement Term may in no circumstances extend beyond the 
Term or the duration of the Commitments, if shorter than the Term, and may be subject to 
termination or expiry as specifically provided for in the Supply Agreement. The Monitoring 
Trustee's reports shall be submitted in a timely manner, allowing  the Commission a period of three 
months for its consideration.  
 
Supply Shortage : any situation in which the Notifying Party is unable to produce or supply 
sufficient quantities of Product to fulfil its obligations under the Supply Agreements.  
 
Term : the p eriod of 10 years following the Effective Date.  
 
Territory : global.  
 
Section B.  Description of Commitments  
  
2. The Notifying Party undertakes that, during the Term, it will supply under the Supply Agreement  
in the Territory the Products to the Customer on reasonable and non -discriminatory commercial 
terms at the Price. Supply Agreements shall provide for the possibility of Indexation and 
Customisation.  For the avoidance of doubt, all Customers shall have the option of safeguarding 
the terms they might have agreed with the Notifying Party prior to the Effective Date or of freely 
negotiating with the Notifying Party terms which deviate from those set out herein. To the extent 
the Notifying Party sells Products on its own account under a licence agreement enter ed into with 
the Customer and the Customer  intends  to sell those Products under its own brand because of 
termination or expiry of the licen ce or other cause, those quantities shall be covered by the Supply 
Agreement.  
 
6 
  
3. In the event that a Customer requests to purchase Excess Quantities and the fulfilment of such 
request would impose unreasonable costs on the Notifying Party, the Notifying Party commits to 
discuss with the Customer in good faith, in consultation with the Monitoring Trustee a means of 
resolvin g such supply request. If the Notifying Party and the Customer do not reach an agreement, 
the Monitoring Trustee will,  subject to consultation with the Commission , determine whether the 
supply request for Excess Quantities shall be fulfilled, in full or in part, with the Monitoring 
Trustee taking into account the reasonableness of the request of the Customer, any capacity 
constraint encountered by the Notifying Par ty and any additional necessary and non -
discriminatory expenditures that may be imposed on the Customer in the fulfilment of such 
request.  
 
4. The Notifying Party shall not do or fail to do anything that will  knowingly and significantly 
degrade the quality of  the Product  in comparison to: (i) the quality of HAB supplied through its 
own wholesale distribution and; (ii) the quality requirements according to leading industry 
standards, in particular the internationally accepted standards set by the International 
Electrotechnical Commission under IEC 60086 -2 and IEC 60086 -1, as amended from time to 
time.    
 
5. In case of a Supply Shortage, Notifying Party shall provide the Products to the Customers in 
priority to servicing the Notifying Party’s own requirements. In su ch case, an allocation 
methodology for the Products to each of the Customers and the Notifying Party shall be 
established by the Monitoring Trustee in consultation with the Commission.  
 
6. The Notifying Party commits to put in place internal information barr iers with a view to 
establishing a separation between its hearing aid battery related activities upstream (i.e., VAG’s 
HAB supplies to the Customers) and its hearing aid battery related activities downstream (i.e., 
VAG’s HAB supplies to retailers, wholesal ers and distributors other than the Customers) 
(Information Barrier ).   
 
7. The Notifying Party undertakes that it will not make the supply of Products subject to acceptance 
by the Customer of supplementary obligations which by their nature and according to commercial 
usage have no connection to the subject of the Supply Agreement ( Non-Tying Obligation ).  
 
Section C.  Monitoring Trustee  
 
I. Appointment procedure  
 
 
7 
 8. The Notifying Party shall appoint a Monitoring Trustee to carry out the functions specified in 
these Commitments for a Monitoring Trustee. The Notifying Party commits not to close the 
Concentration before the appointment of a Monitoring Trustee.  
9. The Monitoring Trustee shall:  
 
(i) at the time of appointment, be independent of the Notifying Party;  
 
(ii) possess the necessary qualifications to carry out its mandate, for example have sufficient 
relevant experience as an investment banker or consultant or auditor; and  
 
(iii) neither have nor become exposed to a Conflict of Interest.  
 
10. The Monitoring Trustee shall be remunerated by the Notifying Party in a way that does not impede 
the independent and effective fulfilment of its mandate.  
 
Proposal by the Notifying Party  
11. No later than two weeks after the Effective Date, the Notifying Party shall submit a list of one or 
more persons whom the Notifying Party proposes to appoint as the Monitoring Trustee to the 
Commission for approval. The proposal shall contain sufficient information for the Commission to 
verify that the person or persons proposed as Monitoring Trustee fulfil the requirements as set out 
in paragraph 9 and shall include:  
 
a. the full terms of the proposed mandate, which shall include all provisions necessary to 
enable the Monitoring Trustee to fulfil its duties under these Commitments;  
 
b. the outline of a work plan, which shall describe how the Monitoring Trustee intends to 
carry out its duties under these Commitments.  
Approval or rejection by the Commission  
12. The Commissi on shall have the discretion to approve or reject the proposed Monitoring Trustee(s) 
and to approve the proposed mandate subject to any modifications it deems necessary for the 
Monitoring Trustee to fulfil its obligations. If only one name is approved, the  Notifying Party shall 
appoint or cause to be appointed the individual or institution concerned as Monitoring Trustee, in 
accordance with the mandate approved by the Commission. If more than one name are approved, 
the Notifying Party shall be free to appoi nt the Monitoring Trustee from among the names 
approved. The Monitoring Trustee shall be appointed within one week of the Commission’s 
approval, in accordance with the mandate approved by the Commission.  
 
 
8 
 New proposal by the Notifying Party  
13. If all the pro posed Monitoring Trustees are rejected, the Notifying Party shall propose at least two 
more natural or legal persons within one week of being informed of the rejection, in accordance 
with paragraph 8 to 12 of these Commitments.  
Monitoring Trustee nominated by the Commission  
14. If all further proposed Monitoring Trustees are rejected by the Commission, the Commission shall 
nominate a Monitoring Tru stee, whom the Notifying Party shall appoint, or cause to be appointed, 
in accordance with a trustee mandate approved by the Commission.  
  
II.  Functions of the Monitoring Trustee  
 
15. The Monitoring Trustee shall assume its specified duties and obligations in order to ensure 
compliance with the Commitments. The Commission may, on its own initiative or at the request 
of the Monitoring Trustee or the Notifying Party, give any orders or instructions to the 
Monitoring Trustee in order to ensure compliance with the conditions and obligations attached 
to the Decision.  
 
Duties and obligations of the Monitoring Trustee  
 
16. The Monitoring Trustee shall:  
 
(i)  monitor the execution and implementation of the Supply Agreements and ensure that the 
rights and obligations arising un der the Supply Agreements, including with respect to 
matters such as pricing, quality, quantities and other key parameters, are determined and 
carried out in fully compliance with the Commitments;  
 
(ii) propose to the Notifying Party such measures as the Monitoring Trustee considers 
necessary to monitor and ensure the Notifying Party’s compliance with the conditions and 
obligations with respect to the Information Barrier and Non -Tying Obligations;  
 
(iii) propose in its first report to the Commission a detailed w ork plan describing how it 
intends to monitor compliance with the obligations and conditions attached to the 
Decision;  
 
(iv) propose to the Notifying Party such measures as the Monitoring Trustee considers 
necessary to ensure the Notifying Party’s compliance w ith the conditions and obligations 
attached to the Decision;  
 
 
9 
 (v) act as a contact point for any requests by third parties, in particular the potential 
Customers, in relation to the Commitments;  
 
(vi) promptly report in writing to the Commission, sending the Notify ing Party a non -
confidential copy at the same time, if it concludes on reasonable grounds that the 
Notifying Party is failing to comply with these Commitments;  
 
(vii) assume the other functions assigned to the Monitoring Trustee under the conditions and 
obligati ons attached to the Decision.  
 
 III. Duties and obligations of the Parties  
 
17.  The Notifying Party shall provide and shall cause its advisors to provide the Monitoring Trustee 
with all such co -operation, assistance and information as the Monitoring Trustee may reasonably 
require to perform its tasks. The Notifying Party shall make available to the Monitoring Trustee 
one or more offices on their premises and shall be available for meetings in order to provide the 
Trustee with all information necessary for the  performance of its tasks.  
 
18. The Notifying Party shall provide the Monitoring Trustee with all managerial and administrative 
support that it may reasonably request and provide the Monitoring Trustee with access to any 
documents and records that the Monitori ng Trustee may require in carrying out its duties.  
 
19. The Notifying Party shall indemnify the Monitoring Trustee and its employees and agents (each 
an “Indemnified Party ”) and hold each Indemnified Party harmless against, and hereby agrees 
that an Indemnifi ed Party shall have no liability to the Notifying Party for, any liabilities arising 
out of the performance of the Monitoring Trustee’s duties under the Commitments, except to the 
extent that such liabilities result from the wilful default, recklessness, g ross negligence or bad faith 
of the Monitoring Trustee, its employees, agents or advisors.  
 
20. At the expense of the Notifying Party, the Monitoring Trustee may appoint advisors (in particular 
for corporate finance or legal advice), subject to the Notifying P arty’s approval (this approval not 
to be unreasonably withheld or delayed) if the Monitoring Trustee considers the appointment of 
such advisors necessary or appropriate for the performance of its duties and obligations under the 
mandate, provided that any fees and other expenses incurred by the Monitoring Trustee are 
reasonable. Should the Notifying Party refuse to approve the advisors proposed by the Monitoring 
Trustee the Commission may approve the appointment of such advisors instead, after having heard 
the Notifying Party. Only the Monitoring Trustee shall be entitled to issue instructions to the 
advisors. Paragraph 19 of these Commitments shall apply mutatis mutandis . 
 
 
10 
 21. The Notifying Party agrees that the Commission may share Confidential Information proprietary 
to the Notifying Party with the Monitoring Trustee. The Monitoring Trustee shall not disclose 
such information and the principles contained in Article 17 (1) and (2) of the Merger Regulation 
apply mutatis mutandis .  
 
22. The Notifying Party agrees that the contact details of the Monitoring Trustee are published on the 
website of the Commission's Directorate -General for Competition and they shall inform inter ested 
third parties, in particular any potential purchasers, of the identity and the tasks of the Monitoring 
Trustee.  
 
23. For a period of 10 years from the Effective Date, the Commission may request all information 
from the Parties that is reasonably necessar y to monitor the effective implementation of these 
Commitments.  
 
III. Replacement, discharge and re -appointment of the Monitoring Trustee  
 
24. If the Monitoring Trustee ceases to perform its functions under the Commitments or for any 
other good cause, including its  exposure to a Conflict of Interest:  
 
a. The Commission may, after hearing the Monitoring Trustee, require the Notifying Party 
to replace the Monitoring Trustee; or  
b. The Notifying Party, with the prior approval of the Commission, may replace the 
Monitoring Tru stee. 
 
25. If the Monitoring Trustee is removed according to paragraph 24, the Monitoring Trustee may be 
required to continue in its function until a new Monitoring Trust ee is in place to whom the 
Monitoring Trustee has affected a full hand -over of all relevant information. The new Monitoring 
Trustee shall be appointed in accordance with the procedure referred to paragraphs 8 to 14. 
 
26. Unless removed according to paragraph 24, the Monitoring Trustee shall cease to act as 
Monitoring Trustee only after the Commission has discharged it from its duties after all the 
Commitments with which the Monitoring Trustee has bee n entrusted have lapsed. However, the 
Commission may at any time require the reappointment of the Monitoring Trustee if it 
subsequently appears that the Commitments might not have been fully and properly implemented.  
  
 
11 
  
Section D.  Arbitration  
 
27. In the event that the Customer claims that the Notifying Party is failing to comply with the 
requirements of the Commitments described in paragraphs 2 to 7 above, the Customer may choose 
to utilise the fast track dispute resolution procedure as described in this Section.  
 
 Fast Track Dispute Resolution  
 
28. If the Customer wishes to  avail itself of the fast track dispute resolution procedure, it shall send a 
written request to the Notifying Party (with a copy to the Monitoring Trustee) setting out in detail 
the reasons leading the Customer to believe that the Notifying Party is faili ng to comply with the 
requirements of these Commitments. The Customer and the Notifying Party will use their best 
efforts to resolve all differences of opinion and to settle all disputes that may arise through 
cooperation and consultation within a reasonab le period of time not exceeding fifteen (15) 
working days after receipt of the request.  
29. The Monitoring Trustee shall present its own proposal ( Trustee Proposal ) for resolving the 
dispute within seven (7) working days, specifying in writing the action, if a ny, to be taken by the 
Notifying Party in order to ensure compliance with the Commitments vis -à-vis the Customers, and 
be prepared, if requested, to facilitate the settlement of the dispute.  
 
30. Should the Customer and the Notifying Party (together Parties to  the Arbitration ) fail to resolve 
their differences of opinion in the consultation phase, the Customer shall serve a notice ( Notice ), 
in the sense of a request for arbitration, to the ICC ( Arbitral Institution ) with a copy of such 
Notice to the Notifying P arty. 
 
31. The Notice shall set out in detail the dispute, difference or claim ( Dispute ) and shall contain, inter 
alia, all issues of both fact and law, including any suggestions as to the procedure, and all 
documents relied upon shall be attached, e.g. documents, agreements, expert reports, and witness 
statements. The Notice shall also contain a detailed description of the action to be undertaken by 
the Notifying Party.  
 
32. The Notifying Party shall, within ten (10) working days from receipt of the Notice, submit its 
answer ( Answer ), which shall provide detailed reasons for its conduct and set out, inter alia, all 
issues of both fact and law, including any suggestions as to the procedure, and all documents 
relied upon, e.g. documents, agreements, expert repo rts, and witness statements. The Answer 
shall, if appropriate, contain a detailed description of the action which the Notifying Party 
proposes to undertake vis-à-vis the Customer.  
 
 
12 
 Appointment of the Arbitrators  
33. The Arbitral Tribunal shall consist of three  (3) persons. The Customer shall nominate its arbitrator 
in the Notice; the Notifying Party shall nominate its arbitrator in the Answer. The arbitrators 
nominated by the Customer and by the Notifying Party shall, within five (5) working days of the 
nominat ion of the latter, nominate the chairman, making such nomination known to the Parties to 
the Arbitration and the Arbitral Institution which shall forthwith confirm the appointment of all 
three (3) arbitrators. The three -person arbitral tribunal is herein r eferred to as the Arbitral 
Tribunal . 
 
34. Should the Parties to the Arbitration fail to nominate an arbitrator, or if the two (2) arbitrators fail 
to agree on the chairman the default appointment(s) shall be made by the Arbitral Institution.  
 
Arbitration Proce dure 
 
35. The Dispute shall be finally resolved by arbitration under the rules of the Arbitral Institution, with 
such modifications or adaptations as foreseen herein or necessary under the circumstances 
(Rules ).  The Arbitration shall be conducted in Frankfurt , Germany, in the English language.  
 
36. The procedure shall be a fast -track procedure. For this purpose, the Arbitral Tribunal shall shorten 
all applicable procedural time -limits under the Rules as far as admissible and appropriate in the 
circumstances. Parti es to the Arbitration shall consent to the use of e -mail for the exchange of 
documents.  
 
37. The Arbitral Tribunal shall, as soon as practical after the confirmation of the Arbitral Tribunal, 
hold an organisational conference to discuss any procedural issues w ith the Parties to the 
Arbitration. Terms of reference shall be drawn up and signed by the Parties to the Arbitration and 
the Arbitration Tribunal at the organisational meeting or thereafter and a procedural time -table 
shall be established by the Arbitral Tribunal. An oral hearing shall, as a rule, be established within 
two months of the confirmation of the Arbitral Tribunal.  
 
38. In order to enable the Arbitral Tribunal to reach a decision, it shall be entitled to request any 
relevant information from the Part ies to the Arbitration, to appoint experts and to examine them at 
the hearing, and to establish the facts by all appropriate means. The Arbitral Tribunal is also 
entitled to ask for assistance by the Monitoring Trustee in all stages of the procedure.  
 
39. The Arbitral Tribunal shall not disclose Confidential Information and apply the standards 
attributable to Confidential Information under the Merger Regulation. The Arbitral Tribunal may 
take the measures necessary for protecting confidential information in par ticular by restricting 
access to Confidential Information to the Arbitral Tribunal, the Monitoring Trustee and outside 
counsel and experts of the opposing party.  
 
13 
  
40. The burden of proof in any dispute under these Rules shall be borne as follows: (i) the Customer 
must produce evidence of a prima facie case and (ii) if the Customer produces evidence of a prima 
facie case, the Arbitral Tribunal must find in favour of the Customer unless the Notifying Party 
can produce evidence to the contrary.  
 
Involvement o f the Commission  
 
41. The Commission shall be allowed and enabled to participate in all stages of the procedure by:  
 
i. Receiving all written submissions (including documents and reports, etc.) made by the 
Parties to the Arbitration;  
 
ii. Receiving all orders, interi m and final awards and other documents exchanged by the 
Arbitral Tribunal with the Parties to the Arbitration (including Terms of reference and 
procedural timetable);  
 
iii. Having the opportunity to file amicus curiae  briefs; and  
 
iv. Being present at the hearing(s ) and being allowed to ask questions to the Parties to the 
Arbitration, witnesses and experts.  
 
42. The Arbitral Tribunal shall forward, or shall order the Parties to the Arbitration to forward, the 
documents mentioned to the Commission without delay.  
 
43. In the event of disagreement between the Parties to the Arbitration regarding the interpretation of 
the Commitments, the Arbitral Tribunal may seek the Commission’s interpretation of the 
Commitments before finding in favour of any Party to the Arbitration and sha ll be bound by the 
interpretation.  
 
Decisions of the Arbitral Tribunal  
 
44. The Arbitral Tribunal shall decide the dispute on the basis of the Commitments and the Decision. 
Issues not covered by these Commitments and the Decision shall be decided (in the order  as 
stated) by reference to the Merger Regulation, EU law and the general principles of law common 
to the legal orders of the Member States without a requirement to apply a particular national 
system. The Arbitral Tribunal shall take all decisions by major ity vote.  
 
 
14 
 45. Upon request of the Customer, the Arbitral Tribunal may make a preliminary ruling on the 
Dispute. The preliminary ruling shall be rendered within one month after the confirmation of the 
Arbitral Tribunal, shall be applicable immediately and, as a rule, remain in force until a final 
decision is rendered.  
 
46. The Arbitral Tribunal shall, in the preliminary ruling as well as in the final award, specify the 
action, if any, to be taken by the Notifying Party in order to comply with these Commitments vis-
à-vis the Customer (e.g. specify a contract including all relevant terms and conditions). The final 
award shall be final and binding on the Parties to the Arbitration and shall resolve the Dispute and 
determine any and all claims, motions or requests submi tted to the Arbitral Tribunal. The arbitral 
award shall also determine the reimbursement of the costs of the successful Party to the 
Arbitration and the allocation of the arbitration costs. In case of granting a preliminary ruling or if 
otherwise appropria te, the Arbitral Tribunal shall specify that terms and conditions determined in 
the final award apply retroactively.  
 
47. The final award shall, as a rule, be rendered within six (6) months after the date of the terms of 
reference. The time -frame shall, in an y case, be extended by the time the Commission takes to 
submit an interpretation of these Commitments if asked by the Arbitral Tribunal.  
 
48. The Parties to the Arbitration shall prepare a non -confidential version of the final award, without 
business secrets. The Commission may publish the non -confidential version of the award. Nothing 
in the arbitration procedure shall affect the power to the Commission to take decisions in relation 
to the Commitments in accordance with its powers under the Merger Regulation.  
 
Section E.  The review clause  
 
49. The Commission may extend  the time periods foreseen in the Commitments  in response to a 
request from the Notifying Party or, in appropriate cases, on its own initiative. Where the 
Notifying Party requests an extension of a time period, it shall submit a reasoned request to the 
Commission no later than one month before the ex piry of that period, showing good cause . This 
request shall be accompanied by a report from the Monitoring Trustee, who shall, at the same time 
send a non -confidential copy of the report to the Notifying Party. Only in exceptional 
circumstances shall the N otifying Party be entitled to request an extension within the last month of 
any period.  
 
50. The Commission may further, in response to a reasoned request from the Notifying Party showing 
good cause waive, modify or substitute, in exceptional circumstances, on e or more of the 
undertakings in the Commitments. This request shall be accompanied by a report from the 
Monitoring Trustee, who shall, at the same time send a non -confidential copy of the report to the 
Notifying Party. The request shall not have the effec t of suspending the application of the 
 
15 
 undertaking and, in particular, of suspending the expiry of any time period in which the 
undertaking has to be complied with.  
 
Section F.  Entry into force  
 
51. The Commitments shall take effect upon the date of adoption  of the Decision.  
 
 
 
 
……………………………………    
duly authorised for and on behalf of  
 
 
 
   
VARTA Aktiengesellschaft