Wednesday, August 27, 2014

Behavioural versus Structural Remedies in EU Competition Law

Frank P. Maier-Rigaud, IESEG School of Management (LEM-CNRS), Department of Economics and Quantitative Methods; NERA Economic Consulting describes Behavioural versus Structural Remedies in EU Competition Law.

ABSTRACT: This paper discusses the asymmetric use of structural remedies in merger control and antitrust in EU competition law. This asymmetry is explained by what is considered an erroneous legal perception concerning the subsidiarity of structural remedies over behavioural ones under Article 7 of Regulation 1/2003. This paper sets out to contribute to the clarification of the role of structural remedies from a competition policy perspective but also from the perspective of the concerned companies on which such measures would be imposed. In addition to the economic arguments that would speak in favour of rehabilitating structural remedies in abuse of dominance cases, it is argued that the Commission clearly has the legal means of following such a more economic approach in the choice of remedies. In light of the original Commission proposal for a new Regulation and on the basis of the finally adopted text that seemingly professes the impression of a priority of behavioural remedies over structural ones, a content preserving reformulation of Article 7 of Regulation 1/2003 is proposed.

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