Chillin'Competition

‘Remedies in EU Antitrust Law‘, my latest paper, is already available on ssrn and can be downloaded here. It is based on a keynote speech delivered at the University of Mannheim upon the invitation of Heike Schweitzer. The piece is dedicated to her memory.

Remedies are now central to successful enforcement. The correct design and adequate implementation of measures ceasing the infringement are as important, if not more, as detecting and establishing a breach of Articles 101 and/or 102 TFEU.

The days of yore, where the remedy was self-executing, are long gone. With the focus of enforcement on digital markets, effective enforcement depends on specifying, in a regulatory-like way, the measures that firms need to positively (and not just negatively) implement to bring the infringement to an end.

Against this background, the paper makes one point about current administrative practice and another one about the legal landscape.

The first point is that a ‘principles-based approach’ to remedial intervention, whereby an authority refrains from specifying the ways in which the infringement is to be brought to an end, is not compelled by law and is likely to lead to suboptimal outcomes.

Such an approach to the administration of remedies can be expected to delay effective enforcement, is opaque for third parties and is inevitably a source of legal uncertainty: it may never be entirely clear whether the firm subject to the obligations is fully complying with its duties.

The second point the paper makes is that Regulation 1/2003 was probably not designed with regulatory-like intervention in mind. This reality is neither a surprise nor a criticism: as Andriani Kalintiri and I showed empirically (see here), regulatory-like remedies were a rarity under Regulation 17.

Article 7 (unlike Article 9) of Regulation 1/2003 appears to be premised on the idea that behavioural remedies are necessarily negative in nature (that is, they impose an obligation to refrain from engaging in certain conduct) and implemented on a one-off basis.

It is suggested that Article 7 could be reformed so as to introduce a structured framework giving third parties the chance to express their views on the proposed measures and to give addressees the certainty that the obligations they implement comply with the terms of the decision.

Finally, the paper also addresses some of the ongoing debates. Competition authorities are right to be cautious about the implementation of so-called ‘restorative remedies’. It is unclear that there is a legal basis for such remedies (as a matter of EU antitrust and EU law at large).

Even if there were, it is not clear that it would be desirable to embrace restorative intervention. The system already struggles with the administration of complex, regulatory-like remedies.

Adding a layer of complexity would absorb even more resources and may venture beyond what competition authorities can realistically and consistently achieve. Restorative intervention, it is submitted, is best undertaken by means of ad hoc regulation (such as the DMA).

I would very much welcome your thoughts (nothing to diclose).