Behavioral vs. Structural Remedies in European and Slovak Competition Law

Abstract

Market economy presupposes a proper functioning of competition. Identification of situations potentially harmful for competition is a task for competition authorities. However, how to handle the situation at stake is an issue in itself. Although there is regulation of remedies in EU competition law and a partial regulation in Slovak competition law, especially merger regulation, the question is in what manner, if at all, are remedies applied in practice. This paper deals with these questions in relation to merger as well as antitrust cases. It looks into theoretical background followed by an outline of the European Commission’s cases. On top of that, the paper inquiries into the employment of remedies in broader sense in the practice of the Slovak Republic. After presentation of the Slovak regulation of remedies, three recent cases are addressed. The first one is represented by a merger case from the health services sector which was cleared only upon conditions. The situation which triggered the need for remedies is elaborated on, as well as the structural and partially behavioural remedies which were employed. The second one is represented by a case from car industry sector where behavioural obligations were imposed by a decision on commitments in order to solve possible vertical restrains. Although it is less usual to impose remedies in antitrust cases, the case shows how competition law’s concerns on vertical market can be solved by obligations of behavioural type. The third one deals with a cartel case in which a behavioural remedy in form of prohibition of participation in tendering procedures was imposed. Therefore, the paper shows how obligations to act in certain manner or to undergo structural change can be employed in practice at Union and national level in order to solve competition law issues.