If I had a Hammer…Structural Remedies and Abuse of Dominant Position

Regulation 1/2003 empowers the European Commission to adopt remedies of a structural nature in order to bring an infringement of the rules of competition to an end. This paper first describes the legal conditions that have to be fulfilled for a structural remedy to be imposed under Art. 82. These conditions are strict: necessity and proportionality function as a straitjacket and will rarely allow the adoption of structural remedies. The second issue addressed is whether economic analysis and reasoning should be taken into consideration in the decision to adopt a structural remedy. Indeed, a potential conflict may arise between the outcome of a ‘‘legal test’’, based on the effectiveness of the remedy, and the ‘‘economic test’’, mainly focused on its efficiency. In analysing the efficiency of a remedy a three-stage test is suggested. This analysis leads to the suggestion that the Commission, when faced with the option of which remedy to choose, should take into account economic reasoning as much as possible. The attempt to reconcile the two tests, the legal and the economic one, inevitably brings to the conclusion that structural remedies have a residual nature and will be adopted only in particular circumstances.