Behavioural Remedies in EC Merger Control - Scope and Limitations

Abstract

Behavioural remedies provide the competition agency with flexibility and reversibility which are not usually found in structural remedies. On the other hand, behavioural remedies tend to generate uncertainty and costs, casting doubt upon their usefulness and reflecting their alleged inferiority. The following article explores the scope and limitations of behavioural remedies and questions whether they are used adequately in light of their potential role in conditional clearances of merger transactions. The discussion first focuses on the characteristics, benefits and drawbacks associated with behavioural remedies. It then moves on to consider which incentives may affect the negotiation of remedies and how the risk of “under-fixing” influences the competition agency’s position when assessing proposed commitments. Following this theoretical debate, the discussion shifts to the European merger regime and reviews the way in which the European Commission and Courts have shaped the scope of behavioural remedies. The range of behavioural remedies accepted by the European Commissions and their effectiveness are also considered together with the mechanisms used to facilitate their monitoring and enforcement. The article concludes with a discussion of the likelihood of behavioural remedies being used more prevalently in the future and the factors that could influence such direction.