Rising tide of ‘Fix-it-first’ and ‘Up-front Buyer’ remedies in EU and UK merger cases

October 2016

CPI Europe Column edited by Anna Tzanaki (Competition Policy International) & Juan Delgado (Global Economics Group) presents:

Rising tide of ‘Fix-it-first’ and ‘Up-front Buyer’ remedies in EU and UK merger cases
by Dominic Long (Senior Associate, Allen & Overy LLP), Catherine Wylie (Associate, Allen & Overy LLP) & David Weaver (Associate, Allen & Overy LLP)

Issue in focus 

‘Fix-it-first’ (FiF) and ‘up-front-buyer’ (UFB) remedies have long been a commonplace aspect of U.S. merger control enforcement, featuring in a significant majority of structural remedies negotiated by the Federal Trade Commission and Department of Justice over recent years.[1]

A convergence with this approach is now emerging from recent decision-making by the European Commission (Commission) and the UK Competition and Markets Authority (CMA).  Since her appointment as European Commissioner for Competition on 1 November 2014, Margrethe Vestager has overseen 12 merger cases in which competition concerns have been resolved through the use of FiF or UFB remedies.  By contrast, between one and three such remedies were agreed annually over the period 2010–2013.  The CMA has also made increasing use of FiF and UFB remedies in recent merger control reviews, albeit with a preference for the deployment of such remedies at an earlier stage in its review process. Examples include the WIND / Hutchinson 3G joint venture (reviewed by the Commission) and Tullet