Where there is a violation of the antitrust rules, there must be consequences. This can take the form of fines or damages for injured parties, but also structural or behavioral remedies designed to maintain or restore competitive conditions.
Antitrust remedies have become a hot topic in recent months. Prominent politicians around the world are calling for certain technology companies to be “broken up” for alleged antitrust infringements. In parallel, there have been significant policy shifts in the U.S. as regards the correct approach to remedies in merger enforcement.
The contributions to this Chronicle discuss the relative merits of structural and behavioral remedies for both merger and antitrust enforcement in light of the latest controversies, legal developments and empirical evidence.
On the antitrust side, European enforcers at the national level have gained new powers to impose effective remedies under the 2019 ECN+ Directive. But, as the contributions to this Chronicle discuss, to be effective, a remedy must be carefully tailored to the case. Depending on the facts, it can take the form of a simple prohibition (“bringing the infringement to an end”) or a positive obligation (a “duty to deal”). Even “structural” remedies (i.e. divestments) are possible in appropriate abuse (and potentially cartel) cases.
On the merger side, U.S. enforcers have recently grappled with the enforcement of past merger remedies (e.g. the Ticketmaster/Live Nation consent decree), while the DOJ has reaffirmed its preference for structural over “conduct” or “behavioral” remedies, given the additional cost and difficulty associated with their monitoring and enforcement. As the contributions to this Chronicle discuss, finding the right balance is not a straightforward exercise.
In sum, effective detection, investigation, and deterrence of competitive harm are vital to antitrust enforcement. But to reap the full benefits of the competition rules, enforcers and courts must be able to remedy harm (or potential harm) to consumers. In this sense, antitrust enforcement without appropriate remedial action is akin to a medical diagnosis without the administration of a cure. At the same time, to use an oft-repeated phrase, the remedy ought not be worse than the disease. The pieces in this Chronicle seek to aid practitioners and enforcers engaged in this delicate balancing act.
For further expert analysis of the effectiveness of remedies in merger control look out for CPI’s forthcoming publication, Controlling Mergers and Market Power: A Program for Reviving Antitrust in America, by Professor John Kwoka of Northeastern University, which will be available from CPI in both print and e-book formats this spring.
Lastly, please take the opportunity to visit the CPI website and listen to our selection of Chronicle articles in audio form from such esteemed authors as Maureen Ohlhausen, Herbert Hovenkamp, Richard Gilbert, Nicholas Banasevic, Randal Picker, Giorgio Monti, Alison Jones, and William Kovacic among others. This is a convenient way for our readers to keep up with our recent and past articles on the go, in the gym, or at the beach.
As always, thank you to our great panel of authors.