Merger remedies – is it time to go more behavioural?

Thomas Wilson; Kluwer Competition

Most competition authorities have a preference for
structural remedies in merger cases in the form of divestitures while
behavioural remedies are used less frequently. The below blog post analyses
whether the historical bias of behavioural remedies is still warranted or
whether it is time that authorities take a more flexible and differentiated
approach when considering remedies.

Structural vs. behavioural remedies

Merger control rules[ make a distinction between structural remedies and behavioural (or conduct) remedies, even though the line between the two can be somewhat blurred and in practice a remedy will often include structural as well as some behavioural elements (so-called hybrid remedy).

Structural remedies are generally “one-off” measures that are intended to maintain or restore the structure of the market by creating a new or enhanced competitive player. Such remedies are designed to have an immediate market impact (as opposed to having an effect only over time), are intended to be irreversible in nature and do not require continuous monitoring by the authority or third parties. The “classic” structural remedy is a divestiture, i.e. the commitment to sell a business unit. Divestitures are common especially in horizontal mergers…

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