Remedies: Structural, Behavioral, Both, or None? Enforcement Trade-Offs for Mergers and Antitrust

This note reviews the rationale behind both structural and behavioral remedies, not only in merger but also in antitrust cases. The cost-benefit analysis for the enforcement of remedies depends on the case examined, and general presumptions on the relevance of one or another type of remedies and even on their very opportunity might easily be misguided. This calls for a consistent theory of competitive relief, in order to properly frame the enforcement of remedies.

By Andreea Cosnita Langlais¹

I. INTRODUCTION

Remedies, broadly defined as measures used to restore competition by removing a competitive concern or putting an end to an infringement, are yet again topical.

2019 was a busy year from this point of view: there were calls in the U.S. to break up the Big Tech companies and fix competition by imposing spin off remedies,² while in Europe the ECN+ Directive granted Member State competition authorities the same power that the European Commission has held since Council Regulation 1/2003 to impose commitments, i.e. structural or behavioral remedies as an alternative to penalties, in order to quickly restore effective competition and ensure the proper functioning of the European internal market.³

On the enforcement side, the U.S. Department of Justice gave up its more favorable view of conduct remedies for mergers as promoted by the 2011 Remedies Guide, and decided to switch to its previous version focusing on divestitures,⁴ whil