Merger Remedies and Competition Law: An Overview of EU and National Case Law

Abstract

Remedies are an important tool for competition authorities in merger control. In most jurisdictions, prohibitions can be avoided by crafting remedies able to resolve competition law concerns. The design and implementation of merger remedies have evolved during the last two decades. Merger remedies aim to remove competition law concerns raised by a merger. They are designed on a case by case basis. The objective of this foreword is to present the highlights of more than 700 articles of e-Competitions that address specifically, or more generally, merger remedies undertaken and accepted, or imposed, by competition authorities.

The review of merger remedies reported in e-Competitions confirms the trend towards a clear preference for structural remedies in the form of divestitures. The large majority of national competition authorities use divestitures to resolve competition law concerns. Such preference for divestment remedies is consistent with EU practice. National competition authorities are more open to behavioral remedies than the European Commission. A possible explanation may be the difficulty to find a suitable buyer at the national level, which reduces the effectiveness of divestment remedies. In our view the use of behavioural remedies may reveal two other weakness of merger control enforcement at national level: the risk of over and under-enforcement. Indeed, the adoption of behavioural remedies may be unnecessary in some cases, or insufficient to resolve competition concerns in other scenarios. Over-intervention raises the question of inefficiencies that may result: behavioural remedies may chill competition instead of safeguarding it. This is particularly the case of remedies related to output restrictions. On the other hand, under-intervention bears the risk of allowing market concentration that would favor either tacit collusion, or the use of increased market power to distort competition.

Keywords: Merger remedies, behavioral remedies, structural remedies