Work in progress: Friso Bostoen and David van Wamel | From Caution to Creativity in Imposing Antitrust Remedies

Abstract

Establishing an antitrust infringement, even when accompanied by a fine, does little to redress it. Hence, Regulation 1/2003 empowers the European Commission (EC) to impose ‘any behavioural or structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end’. Despite this power to impose any remedy, the EC almost invariably attempts to tackle infringements with ‘simple’ cease-and-desist orders. This cautious approach is increasingly subject to criticism, especially in digital markets, which is why EC officials have started calling for more prescriptive and even restorative remedies. This shift from caution to creativity that may find its way into the Regulation 1/2003 review. 

In our article, we look to the past and future of antitrust remedies. First, we ask whether the caution in remedy design goes back to limits imposed by the legal framework. In particular, the EC is constrained by requirements that the remedy be proportional  and linked to the infringement (a third requirement, that the remedy be effective, provides a lower rather than an upper limit). A close examination of these requirements reveals that they allow for more far-reaching remedies, including prescriptive and restorative ones. Instead, we find that the greatest constraint is practical. Increasingly, and especially in digital markets, abusive conduct pertains to dominant firms’ business models or product design, which complicates remedy design. The DMA at best mitigates this difficulty, which is why we call for a more iterative, creative antitrust remedy procedure.

Speaker: Friso Bostoen and David van Wamel 

Time: 10:45-11:45 hrs

Host and moderator: Konrad Borowicz