Fixing the fix? The EU Commission’s Study on Antitrust Remedies
The study recommends scrapping this hierarchy, as behavioral remedies have often proved toothless. The study recommends scrapping this hierarchy, as behavioral remedies in particular often proved toothless.
- The study proposes appointing monitoring trustees as standard practice, ensuring remedies don’t just look good on paper but actually work in practice.
- Lengthy enforcement procedures undermine the effectiveness of remedies. The study highlights the need for swifter proceedings, particularly in Article 7 cases, where delays can render interventions meaningless.
- The Commission has scheduled a workshop on 27 March 2025 to discuss the findings – a first step to potentially comprehensive reforms.
- Introduction
In competition law, finding an infringement is one thing, but ensuring the market recovers and remains competitive is quite another. This is where antitrust remedies come in, aiming to undo the harm caused by anti-competitive conduct and prevent its recurrence.
Modern remedies are based on Regulation 1/2003, which marked a revolution in EU antitrust enforcement. The new framework gave the Commission broad powers under Article 7 (prohibition decision) and Article 9(commitments decisions) to impose remedies. Article 7 gives the Commission the power to unilaterally impose remedy, with behavioral remedies being preferred over structural remedies like divestments. Article 9 allows companies to propose voluntary remedies to address concerns of the Commission, avoiding a finding of infringement and leading to a quicker resolution. Both provisions have the same ultimate goal: to remedy competitive harm.
The study
By the year 2022, nearly twenty years after the new system was implemented, it was time to take a critical look backwards. Had these remedies restored competition? Did they prevent companies from reverting to old habits? The Commission, eager to evaluate the effectiveness its enforcement arsenal, ordered a
ex-post study
in order to distill lessons learned from the past 20 years
2003 to 2022
- . This provided a macro-level view of enforcement trends, the types of remedies imposed, and their implementation rates.A deep-dive evaluation of twelve key cases, chosen for their significance and diversity in remedy design. This included “blockbuster cases” where remedies had played a central role in the Commission’s enforcement strategy.To assess whether remedies had
- actually restored competition, the researchers relied on:
Oral interviews and written questionnaires with Commission case teams, decision addressees, and market participants.A comprehensive literature review
- covering over 120 economic and legal sources.Open Source Intelligence (OSINT) research
- to track how remedies played out in the real world.The study defined
- implementation as whether the remedies were formally complied with, while
effectiveness measured whether the remedies actually achieved their intended market outcomes. The VerdictAnd within that framework, the results are sobering. The study, which analyzed 20 years of antitrust enforcement found that, while most remedies were formally adhered to, less than half were effective in restoring competition. Some remedies had little or no impact, while other remedies created unintended effects that may have worsened the market conditions. The main culprits are? Behavioral remedies.
According to the study, structural remedies – such as divestments – were always implemented and generally effective. Behavioral remedies, such as price commitments or access obligations or conduct changes, were often poorly implemented, partially implemented or completely ineffective. Structural remedies are used less often, but they achieve their intended market corrections. Two-thirds or more of behavioral remedies are either partially ineffective or completely ineffective. The study confirms what many critics suspected:
behavioral remedy are difficult to police. Companies may exploit loopholes or delay implementation if they do not have strong oversight. They may also ignore the spirit of a remedy, while adhering to the letter. In retrospect, some interventions were poorly designed or lacked adequate enforcement mechanisms. Others came in too late and the damage to competition had already been done. Other words:
The more time it takes to act, the harder it will be to restore competition. In one instance, for example, the Commission found a company had abused their dominance by refusing interoperability data to rival developers. The remedy was that the company, inter alia, had to share technical documents. The study found that the documentation was incomplete and unusable and that it had taken years of legal battles to achieve meaningful compliance. In another case, an industry body accused a patent-holding firm of “patent-ambush” tactics, which involved misleading them into adopting standards based on its patents and then demanding excessive licensing costs. The Commission intervened and capped royalty rates. But by the time the Commission acted, the market had already adapted to the patent-holders’ pricing, meaning that prices fell, but not as much as expected – suggesting the remedy was too little, too late.Generally, the study shows that the average duration of Article 7 prohibition proceedings is approximately 45 months – almost four years – while Article 9 commitment procedures take about 26 months. This can lead to the intervention being obsolete by the time the remedies are implemented. This is especially relevant in digital or fast-evolving markets where delays can have anticompetitive effects and entrench incumbents. In one case specifically, the company that was subjected to the remedies formally complied with them, but the authors of the study found themselves unable to verify the extent and effectiveness of such compliance: There was no monitoring trustee and all key market players refused to comment on whether the commitments had any impact.
The Recommendations
Against that backdrop, the European Commission’s study does more than identify shortcomings – it lays out a clear path for reform. The eighteen non-binding recommendations aim to fix the most pressing issues. The study stresses two key principles in this regard: first, remedies should not only stop the illegal conduct, but also rectify market distortions that have already occurred, whenever possible and proportionately (Recommendation No.1). Second, the ultimate benchmark for any remedy must be its effectiveness, meaning it should actively promote or restore competition rather than merely meeting formal criteria (Recommendation #2).
Below is a structured overview of the other recommendations: Abolishing the Hierarchy Between Behavioral and Structural Remedies
Under current EU law, structural remedies (such as divestments) can only be imposed if no equally effective behavioral remedy exists. The study argues for the elimination of this hierarchy. The Commission should instead be free to impose a remedy that is most effective based on case facts, not legal constraints. This directly addresses the requirement to remove the statutory requirement to subordinate structural measures to behavioral ones in cases under Article 7 (Recommendation #4).
Making monitoring trustees standard practice
Too many remedies fail because of lack of oversight. The study recommends that monitoring trustees become the default and not the exception in both Article 7 cases and Article 9 cases. The study recommends that monitoring trustees be appointed with strict criteria, and with the assistance of technical experts. They should also have the authority to report any violations to the Commission and be independent, well-resourced and free from conflicts of interest. The study also suggests that the costs associated with a Monitoring Trusteeship be charged to the infringing enterprise in Article 7 cases. (Recommendation No.5). The study recommends that remedies are not effective if they have been imposed after years of dragging out cases. To fix this, the study recommends:Streamlining procedures for quicker case resolution (Recommendation #3).Separating infringement and remedy decisions to allow faster enforcement (Recommendation #6).
Using interim measures under Article 8 more frequently in urgent cases (Recommendation #11).
Collectively, these steps reflect the importance of swift intervention. The study also suggests formalizing an Article 7 cooperation procedure This would lead to a more predictable remedy design, The study suggests:
Issuing an EU Antitrust Remedies Notice, similar to the 2008 Merger Remedies Notice (Recommendation #15).
Formalizing market testing of remedies before they are imposed (Recommendation #7).
Providing clearer criteria for when behavioral vs. structural remedies should be used (Recommendation #4).
Building on these points, the study also advises inviting independent external experts early in the design process to address technical or industry-specific challenges (Recommendation #14). Taken together, these measures bolster the call for targeted, realistic, and more effective remedies (Recommendation #15).
Strengthening Reporting Obligations
To ensure meaningful remedies implementation, the study suggests comprehensive reporting obligations (Recommendation #12), i.e.,
Requiring detailed reports from companies on how they are fulfilling their commitments and making such reporting obligations a standard feature of enforcement decisions.
- Imposing sanctions for misleading or incomplete compliance reports.
- Increasing transparency so that rivals and market participants can flag non-compliance.
A Dedicated Remedies Unit
The Commission should consider creating a dedicated Remedies Unit. This Unit would help achieve sector-wide efficiencies by The Unit would consist of a team of specialists who:
Support case teams in designing better remedies.
Ensure cross-case consistency, so lessons from past cases inform future ones.
- Take proactive steps to enforce remedies, rather than waiting for non-compliance to become an issue.
- Encouraging the Use of Article 9 Commitments
- Commitments under Article 9 allow for faster resolutions than full prohibition decisions under Article 7. The study advocates for:
Stron Specifically, the study advocates
Stronger oversight mechanisms, including the involvement of rigidly selected monitoring trustees and technical experts (Recommendation #13).
Faster approval timelines, cutting unnecessary red tape.
More flexibility in modifying commitments if they prove ineffective.
- In addition, the study also calls for simplifying the mandatory market-test steps – e.g., by streamlining publication and translation requirements – to accelerate feedback without compromising rigor (Recommendation #10).
- Ex-Post Evaluation
Finally, the study advocates enhanced ex-post evaluations – collecting and analyzing market data at set intervals – to verify that remedies have a sustainable impact, identify any unintended consequences, and refine future enforcement strategies (Recommendation #16).
The Path ahead
Faced with these findings and recommendations, the Commission may pursue one of three paths:
- Fully embrace change by taking decisive action and pushing through major reforms – most notably abolishing the hierarchy between behavioral and structural remedies, making monitoring trustees mandatory in all remedies cases, and creating a dedicated Remedies Unit to oversee enforcement.
- Implement only incremental tweaks rather than comprehensive reform – e.g., by merely strengthening reporting obligations in individual cases or increasing the use of monitoring trustees without making them mandatory.
- Acknowledge the study but otherwise continue with “business as usual.”
The third scenario appears the least likely. The study’s findings and recommendations are too clear for Given the resources invested in the study and the Commission’s desire to maintain its image as an active and effective enforcer – particularly under Teresa Ribera’s new DG COMP leadership – further action seems inevitable.
As a first step, the Commission has
- scheduled a workshop on 27 March 2025
- . This event will bring together the study’s authors, Commission officials, industry stakeholders (including businesses affected by past remedies), as well as academics and legal experts (the registry link can be found
- here
).
Companies operating in the EU would do well to monitor these developments closely. If implemented, the recommendations could reshape EU antitrust enforcement for the next decade – and developing a penchant for structural remedies may well be just the tip of the iceberg.
***
This post was first published here
.
