This article surveys the law and policy of the Commission’s approach to remedies in Merger Control to date. Underlying much recent criticism have been two problematic procedural characteristics of the EC system. The first is practical: the stringency of deadlines in the Merger procedure, while constituting one of its great benefits, can also mean that there is insufficient time for full and adequate discussion of remedies at each stage in the process. This problem of lack of time has been exacerbated by the Commission’s increasing demands for broader, more severe, and more detailed remedies (such as identification of an “up-front” buyer), which in turn are more time-consuming to formulate. The second problem is structural: the Merger procedure in its present form is insufficiently transparent and offers inadequate procedural safeguards to notifying parties. This criticism is founded in the often competitor-driven nature of the review process, the “judge and jury” syndrome of the Merger Task Force, and the difficulty in obtaining effective judicial review of merger decisions. While developments such as the new Draft Merger Regulation and recent judgments of the Court of First Instance go some way towards alleviating these concerns, they are no panacea for the present difficulties.
World Competition