Co‑operative antitrust in remedy design

2. Understanding remedies: definitions and principles

Before delving into the rationale and architecture of co-operative remedy design, it is important to establish a foundation for the discussion. This section briefly outlines the definition and objectives of remedies, the rules and general principles governing remedies in competition enforcement and the types of remedies available for competition authorities and courts. These elements influence the design remedies, as well as the degree of co-operation they may pursue with different stakeholders, including competition authorities from other jurisdictions.

2.1. Definitions

Remedies in antitrust can be understood as “measures that aim to stop current or future unlawful conduct, prevent its recurrence, cure or prevent the conduct’s anti-competitive effects, and restore competition” (OECD, 2017[7]). Their core universal goal is to correct harm to competition (ex-post if it has occurred) or preserve competition that would otherwise be lost (ex ante if the effect has not materialised, as it is the case in merger review) (Halperin, 2024[8]) with some specific goals according to the framework in which they are used:

• In merger cases, the primary concern is that the transaction may lead to a company gaining or increasing its market power to anti-competitive levels. Authorities and courts impose remedies aimed at eliminating any potential harm to competition resulting from the merger. These remedies enable the approval of transactions that might otherwise be prohibited (OECD, 2012[9]).

• Remedies in antitrust investigations may have an injunctive aim to stop companies from engaging in unlawful activity, as well as to correct its effects on competition. They may also have a preventive aim, seeking to prevent the occurrence of future infringements. Finally, they could be restorative, which implies correcting the effects caused by the infringement (Bostoen and van Wamel, 2023[10]).

• In market investigations, authorities may identify competition concerns that are not necessarily linked to violations of antitrust laws. In such cases, remedies are designed to resolve the concerns by introducing changes in market structure or behaviour, regardless of any wrongdoing by businesses. Remedies can serve as early interventions to prevent situations where risks of anti‑competitive conduct could eventually lead to actual infringements (Van den Boom et al., 2023[11]).1

Box 1 presents relevant definitions applicable to remedies, including different types of remedies available and processes for imposing or accepting remedies in mergers and antitrust investigations.

Box 1. Definitions of key concepts and terms relating to remedies

Type of remedies

Behavioural remedies (or conduct remedies) alter how a firm conducts its operations. Behavioural remedies can take the form of either negative or positive obligations that the firm must comply with.

In contrast, structural remedies require firms to divest, release or carve-out certain of their tangible or intangible assets. They are generally one-off remedies that intend to restore the competitive structure of the market.

In some cases, demand-side remedies (or consumer-facing remedies) may be considered, which generally involve applying insights from behavioural economics to identify and address existing consumer biases.

Key processes for imposing or accepting remedies

A unilateral conduct proceeding may result in a formal decision, confirming the finding that the abuse of dominance has occurred and including (as relevant) fines, cease-and-desist orders and remedies, or a commitment decision, accepting commitments voluntarily offered by the party itself during an ongoing investigation. Different jurisdictions use different terminology to refer to these procedures, including settlements, undertakings, consent agreements or consent orders or decrees. For the purposes of this paper, the measures imposed through these procedures will be referred as remedies.

Merger proceedings may also result in remedies being imposed or accepted in the form of commitments offered by the merging party.

Also relevant are interim measures, which are protective and corrective tools that may be adopted while an investigation is ongoing, with the primary objective of preventing anti-competitive harm that may occur between the opening of an investigation and a final decision

Source: OECD (2025[12]), “Remedies in digital markets in Latin America and the Caribbean”, OECD Roundtables on Competition Policy Papers, No. 326, OECD Publishing, Paris, https://doi.org/10.1787/34bbc7e4-en.

To guarantee transparency and predictability, many competition authorities have published guidelines or manuals specifying their criteria in considering remedies, including explaining similarities and differences between the procedures applicable to mergers, conduct and, when relevant, market investigations.2 While all scenarios have different procedures applicable, for the purposes of this note, they will all be referred to as remedies, with appropriate distinctions made when needed.3

2.2. Principles

Whether imposed at the conclusion of an enforcement investigation or as part of a merger review, remedies serve a set of common objectives, as illustrated above, and are guided by the two following shared principles that are widely recognised across competition authorities.

2.2.1. Effectiveness

One core principle recognised by authorities and courts around the world is that competition remedies should be effective. Remedies must put an end to (1) the harmful behaviour (or the possibility for it to materialise) and (2) its effects. In this context, the remedy should have the ability to stop the behaviour, prevent its repetition and re-establish competition (Mandrescu, 2024[13]).4

Remedies should also be tailored to the underlying harm (Ohlhausen and Taladay, 2022[14]). When imposing remedies, authorities aim at addressing a past, current or potential distortion of competition. This requires clearly identifying the competition concern so that the remedy can be properly tailored and directly connected to it. Effectiveness is also linked to timing considerations. A remedy should address the competition concern as soon as possible. Changes in market dynamics, future implementation and monitoring costs and time required for the materialisation of the intended effects should be considered. Generally, the remedy application should be long enough to allow for the intended effects and short enough to account for the dynamic nature of markets (OECD, 2022[3]). When remedies are offered by the parties, it is common that competition authorities require the company to clearly establish the timeframe for their implementation. When remedies are of behavioural nature, the proposal must establish the period in which the company expects to maintain its commitment.

Finally, effectiveness encompasses implementability and enforceability. This means that all parties concerned should be able to comply with the remedy within the established period (implementability) and non-compliance should be considered a violation of competition laws subject to sanctions (enforceability). Effectiveness also requires verifiability, meaning that competition authorities must establish mechanisms to monitor compliance, verify implementation and assess the remedy’s effects.

2.2.2. Proportionality

There are limits on authorities’ ability to impose antitrust remedies. Remedies must be proportionate. They must correspond to the nature and scope of the identified harm and must be necessary to correct it. An implication of the proportionality principle is that, whenever there are multiple, equally effective options available, the authority must choose the one that is least burdensome on the parties. In other words, the remedy should be the least restrictive effective mean to address the competition concern. The proportionality test can be different depending on whether the authority is the one imposing the remedy or whether it comes as a proposal from the parties.5

Proportionality also involves causality between the harm and the remedy, meaning that the remedy corrects the identified (and no other) harm. Overall, what proportionality means is that form, intensity and duration should be limited to the necessary to address the competition concern (whether arising from a merger transaction or from anticompetitive conduct), without going beyond. This means that the remedy should not be used for other purposes, including adding more competition into the market than what would have existed in the absence of the transaction or conduct.

Notes

← 1.  The OECD Working Party 2 on Competition and Regulation is holding a roundtable in December 2025 on experiences with market studies and other market analysis to discuss the use of market investigations.

← 2.  One jurisdiction that has provisions allowing the competition authority to impose remedies in the three scenarios is the United Kingdom. The CMA has published individual guidance on each procedure. In 2013, it published the Guidelines for market investigations: Their role, procedures, assessment and remedies. In 2018, it issued Guidance on Merger Remedies. More recently, in 2021, with an amendment in 2023, the CMA published its Merger and Market remedies – guidance on reporting, investigation and enforcement of potential breaches. These latter aim to consolidate the CMA’s approach to orders and undertakings in all scenarios: mergers, monopoly investigations and market investigations.

← 3.  The OECD discussed differences between remedies and commitments in abuse cases in 2022. For a detailed description of terminology see the OECD background note for the discussion (OECD, 2022[3]).

← 4.  When it comes to re-establishing competition, it is important to note that this objective relates to the competitive process itself, rather than to the outcomes for individual competitors. In other words, competition authorities cannot guarantee a specific market result following the implementation of a remedy. Instead, effectiveness is assessed by whether the remedy creates realistic new opportunities for more competition in the market.

← 5.  For example, in the EU, courts have stated that when commitments are offered by companies, the Commission only needs to verify that they address the concerns expressed to them and that they have not offered less onerous commitments that could also address those concerns adequately. By contrast, when remedies are imposed by the Commission, the Commission must seek the least onerous remedy that will effectively bring the infringement to an end. In practice, this means that commitments offered by the parties could go beyond what the Commission could have imposed under the remedies provision, without this being automatically regarded as disproportionate (OECD, 2022[33]).