Structural vs. Behavioral Remedies

The European Commission’s remedial practice displays important differences in the type of remedies accepted in merger as opposed to antitrust cases. This paper briefly reviews the Commission’s remedies practice over the last 14 years highlighting the differences and discussing inconsistencies. It raises the question why predominantly behavioral remedies are chosen in antitrust cases and how this practice could be reconciled with the approach in merger control where the risks to effective competition are viewed as deriving from changes in the structure of the market and where therefore structural remedies are typically considered necessary.

By Frank Maier-Rigaud, Benjamin Loertscher¹

I. INTRODUCTION

Both antitrust and merger investigations at the EU level regularly conclude with the European Commission (“Commission”) accepting commitments or, in antitrust cases, imposing remedies.

In antitrust investigations, Article 9 of Regulation 1/2003² (“Article 9”) provides that the Commission can render commitments binding. In addition, Article 7 of Regulation 1/2003 (“Article 7”) endows the Commission with power to impose remedies to bring an infringement of Articles 101 or 102 of the Treaty on the Functioning of the European Union³ (“TFEU”) effectively to an end.⁴

In the merger control context, the Commission can accept commitments modifying a notified concentration and enabling the Commission to declare the concentration