Emerging Trend of ‘Fix-It-First’ and ‘Up-Front Buyer’ Remedies in Merger Control Regimes

Abstract

Along with the prohibitions against anticompetitive agreements and abuses of market power, merger control is one of the three pillars of competition law in many jurisdictions, including the European Union and the United States. Such jurisdictions forbid concentrations that they deem to pose competitive concerns. However, in order to reach a more beneficial outcome than an outright prohibition, competition authorities may sometimes prefer to approve these concentrations that give rise to competition risks by requiring and implementing appropriate remedies for them.

Choosing a suitable remedy requires a careful examination of the relevant competitive concerns. This is because an inadequate merger remedy will fail to achieve its declared goals and may thereby lead to the hindering of competition in the relevant market.

This article aims to provide valuable insights regarding this specific type of remedy enforcement, which we will endeavor to achieve by: (i) comparing the Fix-it-First and Up-Front Buyer remedy enforcement systems that are used by different jurisdictions and competition authorities by presenting and evaluating their regulations and precedents, and thereby (ii) analyzing the advantages and drawbacks of FIF and UFB remedies, as well as the suitable conditions for implementing such measures. This article will also briefly touch on the issues surrounding the potential implementation of these remedies within the Turkish jurisdiction.

Keywords: fix-it-first, up-front-buyer, merger control, merger remedies

JEL Classification: L40, K21