Thursday, January 27, 2022
Antitrust law enforcement serves goals as diverse as restoring competition, preventing future infringements, educating market participants about the content of the law, expressing social or moral condemnation, and deterring market participants from breaking the law, encouraging law-abiding conduct, punishing past infringements and curing their effects.
Enforcement uses different types of remedies and sanctions to achieve these goals. Remedies are primarily concerned with restoring competition. Sanctions primarily serve deterrence purposes, but also express condemnation.
Competition authorities have substantial powers of devising remedies, but courts impose limits to this remedial discretion (eg, in the 2021 US Supreme Court Decision AMG Capital Management, denying the FTC the power to order disgorgement or restitution). The courts primarily seek to protect due process rights by curtailing remedial discretion. Ironically, however, these limits result in a flight of competition authorities into negotiated commitments (settlements, consent decrees), where there are very few procedural protections, both for the parties and for ensuring that competition is sufficiently protected.
The result of this strict review of remedies in the adversarial procedure and the lax review in the negotiated procedure is an undesirable trade-off between the goals of competition law enforcement where abuses of dominant positions and monopolization are concerned: effective remedies may require sacrificing effective sanctions, because sanctions are generally not available where negotiated solutions are chosen.
This chapter discusses which remedies (behavioural and structural remedies, declaratory, negative and positive prohibitory, restorative and monetary, flanking, 'like-effects' and 'fencing-in' remedies) are, or should be, available in monopolization cases in the US and abuse of dominance cases in the EU. The chapter concludes that granting the competition authorities more remedial discretion in the adversarial procedure would, overall, result in more effective enforcement as well as protecting the alleged infringers’ rights better because the flight into negotiated commitments would be stemmed.