Co‑operative antitrust in remedy design

5. Conclusion

Remedies in antitrust enforcement serve as essential instruments to stop ongoing anticompetitive conduct, prevent its recurrence, and address its effects by restoring competitive conditions in the market. Remedies are a core component of the enforcement toolkit, enabling authorities to ensure that their interventions are effective.

Two guiding principles consistently underpin remedy design: effectiveness and proportionality. These, in turn, involve considerations on causality between the harm and the remedy, and enforceability of the measures. Achieving remedies that are both effective and proportionate is a complex task, requiring not only knowledge of the market dynamics but also a careful judgment and an in-depth case-by-case analysis. In this regard, competition authorities can enhance the effectiveness of the process by using a co-operative approach to design their remedies. Engaging parties, market participants, sector regulators and other relevant actors can enhance the quality, feasibility and legitimacy of remedies. Such inclusive design processes contribute to more robust outcomes, reinforcing the overall effectiveness of antitrust enforcement.

Competition authorities may initiate a dialogue with different actors early in the process. As with co-operation in other stages of an investigation or a merger review, early contact is desirable. Co-operation may also be key in identifying the competition concerns that require the imposition of a remedy, the alternatives of remedies that can address the issues, and the aspects of efficiency and proportionality of those alternatives. It can also be useful in assessing practicability, implementability and enforceability and, in later stages, in monitoring compliance.

While co-operating with stakeholders will always bring challenges related to issues like resources, timing, procedures, legal limitations and even trust and reciprocity, there are strategies that can be followed to achieve effective levels of co-operation. Ultimately, the way authorities deal with these challenges will shape how co-operation in remedy design looks like.

There are several strategies that competition authorities already employ to facilitate collaboration in remedy design, as identified in the paper and that could be considered, when possible and suitable. They can be considered around early engagements with stakeholders, the need for transparent communication of objectives and possible outcomes, the use of different tools to leveraging the different stakeholders’ expertise and adjusting mechanisms that give flexibility to remedy design.

5.1. Early engagement with stakeholders

• Competition authorities could consider strategies to generate opportunities for co-operation outside the framework of cases to build trust and long-term relationships. For example, through informal consultations or international networks.

• When possible, they could initiate contact with other authorities, including sector regulators, public bodies and other competition agencies to discuss initial insights on the issues to remedy and early proposals of remedies.

• As part of the usual requests information to sector regulators, they could include questions regarding key information in the market that is useful for remedy design. Often, consultation is mandatory but, when optional, it could still be considered.

• When multiple authorities are considering imposing remedies, it could be helpful for authorities to exchange and compare draft remedies as soon as possible. Co-ordination may also involve designing jointly the market testing strategies and the timing of the decisions.

5.2. Transparent communication of objectives and possible outcomes

• To increase transparency, authorities could issue clear guidance to parties on the mechanisms and possible outcomes of their collaboration with the authority, including potential rewards from doing so, according to the legal framework.

• Authorities could follow different strategies that aim to clarify roles and responsibilities, for instance, when the same issues are being examined by multiple authorities simultaneously.

• When possible and desirable, competition authorities could create joint working groups with other relevant public authorities for remedy design. They could also discuss alternatives to guarantee effective monitoring of the remedies. Based on possibilities within the legal framework, they could even consider joint monitoring, the appointment of (joint) trustees or requests for specific support.

• In contacts with stakeholders, it could be helpful to establish clear timelines and limits to extensions of discussions to avoid remedy design becoming lengthier than required.

• If possible, authorities could seek to apply principles of international comity when remedies have cross-border effects.

5.3. Use of different tools to leveraging the different parties’ expertise

• Whenever useful, authorities could seek for the grant of confidentiality waivers for co-operation with relevant authorities.

• They could also consider implementing strategies to incentivise parties to come up with an initial remedy proposal.

• Market test remedies when possible. There are different alternatives to market testing and some legal frameworks allow for more flexibility on how to do so.

5.4. Consider adjusting mechanisms

• If considering alignment of remedies with other competition authorities, it could be helpful to review specificities of local markets to make sure that the remedies fully counter harmful effects in the relevant domestic markets and that they are proportionate to the effects in the jurisdiction.

• Consider using sunset or review clauses that allow for flexibility to review remedies in the future.

• Using past experiences to design remedies could also be helpful. Co-ordinating with other agents may also involve sharing of past experiences that contribute to a better design of remedies in similar cases.

• Carrying out retrospective studies is useful in this context.

While not intended to be exhaustive, the list above offers some practical ideas for authorities that recognise the value of engaging in co-operative approaches to remedy design. These strategies can serve as a starting point for fostering more inclusive and effective processes, tailored to the specific context of each intervention and to the legal framework in the jurisdiction.

In sum, co-operative approaches to remedy design have become an important component of modern competition enforcement. As markets grow more global, digital, and complex, the effectiveness of remedies is increasingly shaped by the ability of competition authorities to engage with parties, third parties, regulators, and international counterparts in ways that are transparent, balanced and pragmatic. The experiences discussed in this paper show that the quality of co-operation might determine whether remedies succeed in restoring competition.