Mergers: Definition and evaluation of remedies

Law & Economics workshop organized by Concurrences in partnership with Willkie Farr & Gallagher and MAPP.


Nadine Mouy (Deputy General Rapporteur, Head of the Merger Department Competition Authority)

The adoption of remedies in the context of merger control is an alternative to the prohibition of a merger. It can be observed from this point of view that in France, the competition authorities have made extensive use of this possibility for more than 10 years, since no merger has been prohibited since 2000 (decree of 3 May 2000), while dozens of transactions have been authorised subject to the implementation of remedies (at the same time, the Bundeskartellamt prohibited 52 transactions).

Since the entry into force of the Law on modernisation of the economy and the creation of the Competition Authority on 2 March 2009, 28 transactions have been amended by commitments given by the parties or injunctions issued by the Authority (Decision 12-DCC-100 of 23 July 2012). The Authority’s decision-making practice is also characterised, like that of the Minister for the Economy before it, by the place of behavioural remedies in relation to structural remedies. France differs in this respect from the Commission or other national authorities (the preference for structural commitments is clearly stated in the Commission’s Remedies Notice. For its part, the Bundeskartellamt only accepts structural commitments). The nature of the transactions concerned may explain the choice of behavioural remedies, many of which are vertical or conglomerate in nature). However, the Authority’s experience confirms the problems generally associated with behavioural remedies. The monitoring of their implementation thus represents an increasing burden on the Authority’s resources. Of the 34 cases currently monitored, 29 involve behavioural commitments.

Photos © Léo-Paul Ridet.

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  • Regional Economic Service of the French Embassy (Finland)
  • Clifford Chance (Paris)
  • Analysis Group (Paris)