Merger Remedies in EU: Design under the Entire Competition Law Structure
School of Business | Doctoral thesis (article-based) | Defence date: 2016-03-04
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Aalto University publication series DOCTORAL DISSERTATIONS, 19/2016
AbstractIn both antitrust and merger cases, remedies serve the same purpose, namely to stop the infringement of competition and restore competition. However, the practice of remedy policy in these two areas is varied; for example, structural remedies are preferred in merger cases but strictly limited in antitrust. As remedies have direct effects on the relevant markets once implemented, an impropriate remedy may lead to anti-competitive results. So it worth a deep examination on how to design appropriate merger remedies. This study analyses the merger remedy practise of the Commission in comparison with its practise under Article 102 TFEU, with the goal of developing a way to minimize the errors in designing merger remedies. For this purpose, articles included in this study examine the remedies having adopted by the Commission, compare EU merger control practice with its counterpart in China, explain the extremely different positions of remedies in antitrust and merger control, and demonstrate that antitrust and merger control are not coherent with each other as the former is too weak and the latter too strong. It finds out that a remedy decision should balance a number of important, sometimes competing, considerations, such as efficacy, proportionality and costs. It is fair to say that the adoption of remedies under competition law is largely affected by the leverage in the hand of the Commission at that time, not solely based on the merits of the competition harms in question. On account of the relatively short time window and limited information available for the Commission to assess whether or not a merger would significant impede competition and choose appropriate remedies, the real effects of some remedies may not be in good agreement with the expectation of the Commission. Moreover, risk exists that the Commission be tempted to use merger remedies as an opportunity to redistribute resource among firms in the industry.The general conclusion of this study is that remedy practice under the EU competition law should be coherent and consistent and merger remedies should be considered and designed under the whole EU competition law structure, not solely under merger control. It proposes three ways to achieve this purpose as follows. 1) Converging remedies practice under the whole competition law.The application of remedy under competition law should be consistent, that is, if applicable, the same competition harm should be resolved by the same type of remedies under similar terms.2) Considering Article 102 in merger assessment.The deterrent power of Article 102 should be considered in the merger assessment, in particular in vertical and conglomerate merger cases.3) Postponing the implementation of merger remedies on conditions.In some cases, the implementation of merger remedies may be postponed on conditions, e.g. concerns are raised in a preliminary assessment by the Commission.
Supervising professorRudanko, Matti, Prof., Aalto University, Department of Accounting, Finland
merger remedy, antitrust remedy, EU competition law, merger control
[Publication 1]: Wei; Wang , Matti; Rudanko, 2012. EU Merger Remedies and Competition Concerns: An Empirical Assessment, Blackwell Publishing Ltd. European Law Journal, volume 18, issue 4, page 555–576. ISSN 1351-5993,
DOI: 10.1111/j.1468-0386.2012.00610.x View at publisher
- [Publication 2]: Wei; Wang, Lei; Wang, 2014. Merger Control and Merger Remedies in China: Comparison with the EU Approach, Sweet & Maxwell, Journal of Business Law, Issue 6, page 449-466. ISSN 0021-9460.
- [Publication 3]: Wei; Wang, Lei; Wang, Compulsory Licensing as Antitrust and Merger Remedy in EU, (unpublished).
- [Publication 4]: Wei; Wang, 2011. Structural Remedies in EU Antitrust and Merger Control, Wolters Kluwer Law & Business, World Competition, Volume 34, Issue 4, page 571–596. ISSN 1011-4548.