Merger remedies: key recent developments in the CMA's practice

Abstract

The Competition and Markets Authority (CMA), in common with other competition authorities, strongly favours structural remedies (i.e. business or asset disposals) as the most effective means to restore competition eliminated by a merger. Behavioural remedies (i.e., measures that seek to regulate the ongoing behaviour of the merger parties) are not generally favoured by the CMA. In considering the effectiveness of proposed remedies, the recent judgment in Ecolab v. CMA demonstrates that the CMA is afforded a wide margin of appreciation. That same margin of discretion was notably exercised by the CMA in the Bauer Media Group Inquiry where, contrary to conventional practice, it accepted a complex behavioural remedy in preference to structural alternatives. This article explores these two cases in greater detail and identifies some key factors that inform the CMA's conduct in relation to merger remedies.