Article 82 EC
DG Competition, European Commission
(speaking in a personal capacity - the views expressed are not
necessarily those of the European Commission)
The Legal framework in Europe
- Article 82 of the EC Treaty
- Regulation 1/2003
- Case law of the Community Courts
- Decisional practice of the European Commission
- Context for remedies
- - Article 7 "prohibition decisions
- - Article 9 "commitment decisions"
- - Article 8 "interim measures"
- Article 7 "prohibition decisions
] to bring such an infringement to an end. For this
purpose, it may impose on them any behavioural or structural remedies
which are proportionate to the infringement committed and necessary
to bring the infringement effectively to an end. Structural remedies
can only be imposed either where there is no equally effective behavioural
remedy or where any equally effective behavioural remedy would be
more burdensome for the undertaking concerned than the structural
Recital 12 of Reg 1/2003
Structural remedies should only be imposed either where there
is no equally effective behavioural remedy or where any equally effective
behavioural remedy would be more burdensome for the undertaking concerned
than the structural remedy. Changes to the structure of an undertaking
as it existed before the infringement was committed would only be proportionate
where there is a substantial risk of a lasting or repeated infringement
that derives from the very structure of the undertaking
Framework in practice
- Standard scenario: cease-and-desist order plus fines
- A remedy is an expansion of a cease-and-desist order
- Where the anti-competitive effects on the market persist even though
the restriction of competition itself is no longer in place, remedies
- Alternative solutions:
- Prescribe a certain action, or
- Prohibit a certain action, leaving the firm discretion on what
precisely to implement.
Design of remedies
- Remedies/commitments should be:
- Clear and precise
- Possible criteria for assessment:
- Does the remedy lower barriers to entry?
- Does the remedy change the incentive or ability of market participants
- Is the remedy likely to increase consumer welfare?
- Does the remedy reduce efficiencies in production?
- How likely is it that the remedy prevents future competitive
- Can the remedy be practically implemented, monitored and enforced?
- How quickly can the remedy restore competition?
- Classification - infringement type:
Monitoring and Enforcement of
Remedies in general
- Sector specific regulator
- Competitors, customers
- National courts
- Organizational question
- A structural remedy is a measure that effectively changes the structure
of the market by a transfer of property rights regarding tangible
or intangible assets, including the transfer of an entire business
unit, that does not lead to any ongoing relationships between the
former and the future owner. After its completion, a structural remedy
should not require any further monitoring.
- Involve the transfer of (property) rights → divestiture
- Should not create ongoing links between competing firms → clean
- Remove incentive and/or means of a firm to infringe competition law
(no regulation nexus as in behavioural remedies);
- Monitoring and enforcement only necessary until divestiture completed
- Rarely used under Article 82
The purpose of a remedy
An antitrust remedy
must stop the offending conduct,
prevent its recurrence, and restore competition. Preventing recurrence
must involve proactive steps to address conduct of similar nature. Restoration
requires prospective relief to create lost competition and may involve
actions to disadvantage the antitrust offender and/or favour its rivals.
Charles A. James. The Real Microsoft case and Settlement,
16 Antitrust 58, 60 (2001)