EC study advocates for faster and more efficient EU antitrust remedies

On 20 February 2025, the European Commission (EC) published an ex post evaluation Study on the implementation and effectiveness of EU antitrust remedies (the Study). The Study, the first of its kind, aims to contribute to the ongoing evaluation of Regulation 1/2003, which has governed the enforcement of procedural antitrust rules in the EU since its entry into force.

The findings of the Study can be summarised as follows:

• While most antitrust remedies were fully implemented, fewer than half were fully effective in achieving their intended goals.

• Purely behavioural remedies were found to be less likely to be both fully implemented and effective compared to other forms of remedies.

• 18 non-binding recommendations are made to enhance the effectiveness of antitrust remedies, including the favouring of structural remedies, the adoption of interim measures, and streamlining and shortening antitrust proceedings.

While the Study may lead to changes in legislation and procedural rules regarding the conduct of antitrust proceedings, the EC will need to tread carefully in order not to trump fundamental principles such as proportionality of remedies and defendants' rights of defence. 

Background and objectives

Initiated in 2022, the Study was designed to coincide with the 20th anniversary of Regulation 1/2003, aiming to provide new evidence and insights to enhance both the EC's remedies practice and the legal framework on remedies itself.

The Study was inspired by the 2005 ex post evaluation of merger remedies, which led to substantial changes in the EC's merger control policy, such as the adoption of the 2008 merger remedy guidelines. In turn, the Study focuses on antitrust remedies imposed or accepted by the EC over the past two decades under Articles 7 (finding and termination of infringement) and 9 (commitments) of Regulation 1/2003. Its primary objective is to assess the effectiveness of these remedies and offer recommendations for future practice and policy improvements.

To achieve these objectives, the Study employed a comprehensive and multi-faceted approach. It involved a detailed evaluation of twelve antitrust remedy cases to understand the nuances of implementation and effectiveness, including landmark cases, such as Microsoft I (AT.37792) and E-books (AT.29847). Additionally, a comprehensive dataset of 108 non-cartel antitrust decisions from 2003 to 2022 was analysed to identify patterns and trends. Insights were also gathered from interviews with experts in the field, including academics, practitioners and enforcers from other agencies (e.g. Autorité de la Concurrence, Federal Trade Commission, etc.), providing a practical perspective on the challenges and successes of antitrust remedies. Moreover, an in-depth review of existing literature was undertaken to contextualise the findings within the broader academic and practical discourse.

Key findings

The evaluation of the twelve significant remedy cases revealed several important insights:

• Implementation vs. effectiveness: While most remedies were fully implemented, fewer than half were fully effective in achieving their intended goals. This discrepancy highlights the complexity of designing remedies that not only comply with legal requirements but also achieve practical outcomes.
• Behavioural remedies: Purely behavioural remedies were found to be less likely to be both fully implemented and effective compared to other forms of remedies. This suggests a need for a more nuanced approach in selecting and designing behavioural remedies.
• Temporal improvement: The Study noted that the implementation and effectiveness of remedies have shown improvement over time, indicating a learning curve and adaptation in the EC's approach.

Statistical analysis of Article 7 and 9 decisions

The statistical analysis of all Article 7 and 9 non-cartel antitrust decisions provided additional insights into the EC's antitrust enforcement practices. The analysis revealed that while remedies are necessarily included in all Article 9 decisions specifically, positive remedies beyond a cease-and-desist order were only included in 20% of Article 7 decisions. The Study also found that purely behavioural remedies were the most frequently used remedy type, although they were less likely to be fully effective. The analysis further highlighted the need for a more balanced approach in the use of structural and behavioural remedies to enhance their effectiveness.

Recommendations

The Study offers a set of 18 non-binding recommendations aimed at enhancing the effectiveness of antitrust remedies. These recommendations are designed to address the challenges identified and to build on the improvements observed over time, and include e.g.:

• Revisiting the statutory subordination of structural remedies to behavioural remedies under Article 7, thereby making it easier to impose structural remedies.
• Encouraging the wider use of market testing to ensure the verifiability and effectiveness of proposed remedies.
• Increasing the use of monitoring trustees and strengthening reporting obligations to ensure compliance and effectiveness.
• Advocating for the increased use of interim measures to address urgent competition concerns.
• Establishing a dedicated unit for remedy design, implementation, and effectiveness across various competition policy areas (i.e. merger control, state aid, antitrust, DMA and FSR).
• Introducing measures to streamline antitrust proceedings to ensure timely antitrust decisions.
• Separating infringement decisions from remedy decisions in complex Article 7 cases, allowing for a more tailored design of remedies and extensive market testing.

Conclusion

This Study is an important component of the EC's broader efforts to refine its enforcement practices and policies through economic ex post evaluation. This effort follows other recent publications by DG Competition's Principal Adviser on ex post economic evaluation, for example, on killer acquisitions in pharma and the evolution of competition in the EU in the past 25 years. These publications underscore the EC's commitment to evidence-based policy-making, ensuring that enforcement strategies are both effective and adaptable to changing market dynamics.

The Study highlights the importance of seemingly more technical aspects of remedy design, which, as evidenced by both merger control practice and the Study, can significantly impact the effectiveness of antitrust enforcement. By focusing on these technical nuances, the Study aims to contribute to enhancing the precision and impact of competition remedies.

Notwithstanding the above, the EC should be careful not to extract too extreme conclusions from the Study, which may err to a certain extent by falling into confirmation bias or hindsight bias. By only looking at those cases where a violation was found, and a remedy was designed based on contemporaneous considerations, the Study may rely excessively on present-day lenses to look at past facts and investigations, ignoring the analysis that motivated the length or outcome of specific antitrust cases at the time. Proportionality and rights of defence are still fundamental principles of EU law that need to be protected, even if this comes at the price of lengthy proceedings and the EC's appropriate verification and rebuttal of defendants' arguments.

The findings and recommendations of the Study will be discussed further at an online workshop scheduled for 27 March 2025, where feedback from stakeholders and experts is expected.