Remedies under the EC Merger Regulation

Abstract

Chapter 1 discusses the aim and the reasons for the creation of the EC Merger Regulation. The reasons are economical rather than legal, which means that the economics underlying merger law, that is the primary aim which is to protect the market, is also discussed. This chapter also gives the rudiments of merger law by discussing the legislative basis and the development of merger regulation, including all non-legal aids, such as notices and guidelines. Subsequently, Chapter 2 analyses the aim of remedies, as well as their procedure, such as when such remedies can be first proposed. The criteria used by the Commission in evaluating such remedies is also discussed, including what happens when a remedy acceptable to all the parties and the Commission is not achieved. The remedies themselves are discussed in Chapter 3. These are behavioural and structural remedies. It discusses these remedies individually, taking into consideration numerous Commission decisions and court judgments as examples of their practical implementation as well as a starting point for the discussion undertaken in this thesis. It is however important to note that decisions and case law are used extensively throughout the thesis, since they are a primary source of information on remedies - far more than any legislation actually is. It also explores when the Commission imposes remedies on an alternative basis and 'crown-jewel' provisions. Chapter 4 deals with the actual performance of the commitments, analysing structural and behavioural remedies in turn. This includes the various people involved in the implementation, such as trustees. It also analyses, once an agreement has been reached, when a remedy should be implemented. Consequently, the next step arises after a particular case has been 'closed' by the Commission - i.e. an agreement has been reached. This is dealt within Chapter 5, which discusses both possible modifications that can be made to the finalised commitments, as well as its potential judicial review. It also includes the situation where the merging parties breach a commitment. This chapter also includes a very important study conducted by the Commission. This study is based on decided cases, and it examines the effects of the implemented mergers including their accompanying remedies on the market, arriving to rather interesting and surprising conclusions. The thesis concludes with Chapter 6, by indulging into a comparative analysis between the EU and the US on how remedies are implemented. The remedies, procedures and respective structures are compared and conclusions drawn.