Competition Law Remedies in Europe: Which Limits for Remedial Discretion?

Abstract

The fragmentation of EU competition law enforcement in various institutions (competition authorities, courts) and legal provisions (Articles 101, 102 TFEU, merger control) have led to the development of ad hoc remedial action without this being backed up by a solid theory of competition law remedies. This study aims precisely to fill this gap by providing the first systematic theoretical analysis of competition law remedies in Europe, including conduct and structural remedies, voluntary and coercive remedies, in the areas of merger control and antitrust. The study challenges the optimal enforcement theory that seems to have provided so far the intellectual backbone of the remedial action of EU competition authorities, although this influence has not been exercised in a systematic and uniform way in all cases. Such theory does not provide an adequate understanding of the remedial discretion of competition authorities and consequently the necessary boundaries of such discretion. The study provides a novel analytical framework integrating both economic and legal principles, taking the view that although deterrence (and economic efficiency) constitutes an important objective of EU competition law enforcement, this should be achieved in the context of established legal understandings of the concept of remedy. More specifically, the paper examines the impact of the economic approach on the linkage between the competition law wrong and remedies as the foundation for an economically inspired but still respectful to legal tradition concept of remedial discretion in EU Competition Law.