The Idea of the Subsidiarity of Structural Remedies in European Competition Law (Zur Idee Der Subsidiarität Struktureller Maßnahmen Im Europäischen Wettbewerbsrecht)

Abstract

The article discusses the legal basis for structural remedies under European Competition Law in light of the mainly German criticism of recent commitment decisions in the energy sector and in particular the E.ON decisions of DG Competition. In particular the article discusses what “bringing an infringement effectively to an end” as goal of any remedy implies and if Article 7 Reg. 1/2003 implies that “structural remedies are subsidiary to behavioural remedies” as has been argued by some authors. The article discusses both arguments, which constitute the myth surrounding Article 7, critically. It is argued that the effectiveness of a remedy is not a so-called binary question according to which potentially a whole range of remedies could be either considered effective or ineffective but a question of the most effective remedy. It is an economic assessment of all remedies that passed the specific proportionality and necessity test. It is demonstrated that the claim according to which structural remedies are subsidiary to behavioural remedies cannot be upheld. In light of the original Commission proposal for a new Regulation and on the basis of the finally adopted text that gives the impression of a priority of behavioural remedies over structural ones, a content preserving reformulation of Article 7 is proposed.

Note: Downloadable document is in German.

Keywords: structural remedies, behavioral remedies, Article 7 Reg. 1/2003, Article 9 Reg. 1/2003, proportionality

JEL Classification: K21