Assessing the Consequences for Competition
3. 3.0 Classiﬁcation of merger remedies INTRODUCTION This chapter begins by summarizing the empirical classiﬁcation of EC remedies, mainly into structural and behavioural, but also according to competitive concern. We go on to consider the value of this simple dichotomy and focus on two issues: the need to understand how any particular remedy aﬀects competition in the market; and the details of remedy design as revealed by the clean break principle. 3.1 EMPIRICAL CLASSIFICATIONS OF REMEDIES The DG Competition study (2005) analysed in depth a sample of 40 of its merger decisions over the period 1996–2000. Because most European mergers involve more than one market, the number of markets in which remedies were applied was 96. The full population of its merger cases over these years involved 227 remedies. Although this is only a ﬁve-year subperiod, it includes disproportionately high shares of the full-period mergers and remedies, because of the intense activity in the late 1990s (see Figure 1.1). Table 3.1 lists the main types of remedy used. Broadly speaking, this taxonomy can be aligned with the structural/behavioural dichotomy: transferring a market position and exit from joint venture (JV), being divestment, are structural; granting access is behavioural; and long-term exclusive licences straddle the two, depending on the details of the agreement. ‘Transferring a market position’, or divestment in common parlance, is most frequent. The Commission says this is ‘aimed at re-creating the competitive strength of a business in the hands of a suitable purchaser who exercises...
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