Remedies (antitrust)


Institution Definition

When the Commission decides to pursue a case, it will most likely adopt one of the following two types of decision. The first is formally to find an infringement pursuant to Article 7 of Regulation (EC) No 1/2003 on the implementation of Articles 101 and 102 of the Treaty ("Regulation 1/2003"). The Commission may require the company concerned to stop the infringement, impose remedies and/or impose a fine ("prohibition decision" or "Article 7 decision"). The most recent examples include the decision fining Telefónica and Portugal Telecom, and the decision relating to the TV and computer monitor tubes cartel. Alternatively, the Commission may take a "commitment decision" (or "Article 9 decision") based on Article 9 of Regulation 1/2003. That provision allows companies to offer commitments that are intended to address the competition concerns identified by the Commission. If the Commission accepts these commitments it adopts a commitment decision making them binding on the parties without, however, establishing an infringement. It is at the discretion of the Commission to assess whether or not it is appropriate to accept commitments offered by parties under investigation. The Commission decision to accept commitments is based on a number of factors, and depends in particular on the nature of the suspected infringement, the nature of the commitments and their ability to quickly and effectively solve the competition concerns, and the need to ensure deterrence. The Commission will not accept commitments that do not address competition concerns. Commitments must be unambiguous and self-executing. If need be, a trustee can be appointed to assist the Commission (monitoring and/or divestiture trustee). There are two types of commitments: Behavioural commitments include a commitment by a company to provide certain services or goods under specified conditions (e.g. Case AT.39692 – IBM Maintenance Services). Structural commitment includes the divestiture of assets, for example of an electricity transmission network (see Cases AT.39388 and AT.39389 German electricity market). In principle, the Commission can accept both types of commitments. Experience has shown that usually structural commitments tend to be more effective than behavioural ones. In each case, the Commission will assess whether the commitments proposed by the company effectively solve the competition problem identified. The commitments will always be tailored to the nature of the competition problem. © European Commission

On this topic see the following e-Competition special issues:

"Merger Remedies and Competition Law: An overview of recent EU case law and international policy developments"

"Merger Remedies in the US: An overview of leading cases" 

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