Ex post evaluation of the implementation and effectiveness of EU antitrust remedies : final report

In this report we study the implementation and effectiveness of the antitrust remedies that the European Commission imposed over the last 20 years pursuant to Article 7 (prohibition decisions) and Article 9 (commitments decisions) of Regulation 1/2003. To this end, we collect evidence from a variety of sources, including: (i) the legal and economic literature; (ii) interviews with enforcers, scholars and practitioners on challenges and best practices; (iii) a novel dataset we constructed of all non-cartel antitrust decisions that the Commission took between the entry into force of Regulation 1/2003 on 24 January 2003 and 31 December 2022; and (iv) most notably, the retrospective evaluation of a carefully constructed sample of twelve significant remedy cases, based on oral interviews and written questionnaires with case teams, decision addressees and market participants, as well as Open Source Intelligence (OSINT) research. From the twelve case studies we learn that: (i) while the majority of remedies assessed were fully implemented, less than half of the remedies were fully effective in attaining their intended objective; (ii) purely behavioural remedies were the least likely to be fully implemented and fully effective; and (iii) implementation and effectiveness seem to have improved over time. Based on the twelve case studies and our other sources of evidence we provide several recommendations de lege lata and de lege ferenda for future enforcement practice and policy, especially in relation to remedies under Article 7. In particular, we recommend the removal of the statutory subordination of structural to behavioural remedies under Article 7, the flexible use of market testing, and the more frequent recourse to reporting obligations and monitoring trustees.