This presentation by Frank Maier-Rigaud (managing Director, ABC Economics) was made during a discussion on Remedies and commitments in abuse cases at the 21st meeting of the OECD Global Forum on Competition on 2 December 2022. More papers and presentations on the topic can be found out at https://oe.cd/rcac. This presentation was uploaded with the author’s consent.

1. A fewthoughtsonremedies inabusecases
OECD – GFC 2022
Prof.Dr. FrankMaier-Rigaud
2nd December 2022
Paris*

2. A fewthoughtsonremedies inabusecases
OECD – GFC 2022
Prof.Dr. FrankMaier-Rigaud
2nd December 2022
Paris

3. © ABC economics 3
Agenda
1.Remedies in merger versus abuse cases
2.Differences in remedies between digital and
non-digital abuse cases
3.Some case examples in a nutshell
a. Google Shopping (European Commission
AT.39740 (2017))
b. Google Advertising (Autorité 21-D-11 (2021))
c. Facebook (BKartA B6-22-16 (2019))

4. © ABC economics 4
Why do we observe more structural
remedies in merger cases?
•
•
•
•
• Mergers are about changing the structure of a firm.
• What about mix and match remedies in merger cases that affect the degree of vertical
integration of the firm?
Vertical concerns in merger cases are often very similar to concerns in abuse cases
From a narrow economic point of view it is surprising to find that a suspected(!)
substantial lessening of competition that may not even amount to dominance is
presumably treated “more fiercely” and “rigorously” than the abuse of an already
existing dominant position.
Arguably Council Regulation 1/2003 does not imply a preference for behavioral
remedies (or the subsidiarity of structural remedies), but the Commission still
approaches remedies in abuse cases as if only behavioral remedies were at its disposal.
Based on Council Regulation 1/2003, the structural or behavioral nature of a remedy is
immaterial as long as they are not equally effective. Only in this highly theoretical case
when indeed they cannot be distinguished by the very criteria set forth in Article 7,
does the Article suggest a preference for behavioral remedies. (see Maier-Rigaud (2012)
and (2016))

5. © ABC economics 5
Are there differences in remedies between
digital and non-digital abuse cases?
• Innovation
Remedies are difficult to implement and may become obsolete or
even problematic quickly
• Role of interim measures
risk of markets tipping renders intervention more pressing
• Role of fines
probably less relevant in large digital cases, notably when
anticompetitive conduct is closely related to the core business
• Ecosystem character of digital markets (e.g. Google Ads or Facebook)
• Structural measures are often not a solution (platform markets). The
case for regulation, beyond the typically narrow behavioral remedies,
has been recognized for example with the DMA on EU level.
• If remedies are intended to not only terminate the infringement but
return the market to how it would have developed in the absence of
the infringement, this is much more difficult in fast-paced markets

6. Proposed commitments
© ABC economics 6
Abuse Today
Google Shopping remedies in a nutshell
European Commission AT.39740 (2017)
Less can sometimes be more: Cease and desist order

7. © ABC economics 7
• Facebook must stop processing Data that is “Off-Facebook”
i. WhatsApp, Instagram, other Facebook owned
ii. Third Party Websites using “Facebook Business Tools”
• Must give roadmap about the “How” in 4 months and
implement in one year in after decision
Facebook remedies in a nutshell
BKartA B6-22-16 (2019)

8. © ABC economics 8
Google Advertising remedies in a nutshell
Autorité 21-D-11 (2021)
Behavioural commitments for 3 years:
I. Commits to give to third party SSPs the same level of interoperability with DFP
as AdX.
 This should follow the modalities of header bidding (see slide before) instead of other modalities
used by Google like Open Bidding.
 Dynamic revenue sharing is also prohibited
II. Commits to allow publishers using third-party ad servers to access demand
from AdX
 Both commitments aim at allowing competition on the merit

9. Publications on remedies
Adam, Michael & Frank P.Maier-Rigaud (2009) The Law and Economics of Article 82 EC and the
Commission Guidance Paper on Exclusionary Conduct, Journal of Competition Law (ZWeR - Zeitschrift für
Wettbewerbsrecht), 1, 131-146. Available at SSRN:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1829076.
Hellström, Per, Maier-Rigaud, Frank P.& Wenzel Bulst, Friedrich (2009) Remedies in European Antitrust
Law, Antitrust Law Journal, Vol. 76, pp. 43-63. Available at SSRN: https://ssrn.com/abstract=1830110.
Lowe, Philip & Frank P.Maier-Rigaud (2008) Quo Vadis Antitrust Remedies. 2007 Fordham Competition
Law Institute, Chapter 20, pp. 597-611. Available at SSRN: https://ssrn.com/abstract=1827669.
Lörtscher, Benjamin & Frank P.Maier-Rigaud (2020) On the Consistency of the European Commission‘s
Remedies Practice, chapter 4, pp. 53-72, in Damien Gerard & Assimakis Komninos (eds.) Remedies in EU
Competotion Law – Substance, Process and Policy, Wolters Kluwer. Available at SSRN:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3450614.
Maier-Rigaud, Frank P.& Benjamin Lörtscher (2020) Structural vs. Behavioral Remedies, Antitrust
Chronicle, 1(1) Competition Policy International, Available at SSRN: https://ssrn.com/abstract=2457594.
Maier-Rigaud, Frank P.(2016) Behavioural versus Structural Remedies in EU Competition Law, in: Lowe,
Philip, Marquis, Mel and Monti, Giorgio (eds.), European Competition Law Annual 2013, Effective and
Legitimate Enforcement of Competition Law, Hart Publishing. Available at SSRN:
https://ssrn.com/abstract=2457594.
Maier-Rigaud, Frank P.(2012) The Idea of the Subsidiarity of Structural Remedies in European Competition
Law, Wirtschaft und Wettbewerb, Vol. 5, pp. 485-500. Available at SSRN:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1906335.
© ABC economics

10. Contact
Prof. Dr. FrankP. Maier-Rigaud
Managing Director
Tel: +49 (0) 30 403 611 480 (Berlin)
Tel: +32 (0) 2 217 97 09 (Brussels)
Tel: +44 (0) 20 4577 0910 (London)
Tel: +33 (0) 1 857 347 80 (Paris)
Fax: +49 (0) 30 403 611 499
Frank.Maier-Rigaud@ABCecon.com
www.ABCecon.com
9
© ABC economics