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Survey – Recent Developments in EU Merger Remedies

Christopher Cook et al., Journal of European Competition Law & Practice, 2017, Vol. 8, No. 5

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Over a decade has passed since the Commission published the Merger Remedies Study, which found around one-third of the remedies evaluated to have been wholly or partially ineffective. Subsequent empirical studies covering the Commission’s early merger control practice supported the notion that EU merger remedies some-times failed to preserve effective competition in the affected markets, for reasons including inadequate scope of the divestment business, unsuitable purchasers, and insufficient cooperation from third parties.

In recent years, the Commission has tried to improve this record by applying an increasingly stringent approach to the assessment of merger remedies, which has become even more pronounced under Commissioner Vestager. In a recent speech, she reaffirmed her services’ read[iness] to intervene when competition is at risk’ in the face of rapid consolidation and growing levels of concentration across industries. In 2016, this translated into the Commission’s highest intervention rate since 2008, the first prohibition decision since 2013 (Hutchison 3G UK/Telefónica UK (under appeal)), and an arguably tougher stance on remedy design and implementation in general. Five trends were particularly noteworthy.

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