This presentation by Amelia Fletcher CBE, Professor of Competition Policy, University of East Anglia, was made during the discussion “Ex-post Assessment of Merger Remedies” held at the 22nd meeting of the OECD Global Forum on Competition on 8 December 2023. More papers and presentations on the topic can be found out at oe.cd/eamr. This presentation was uploaded with the author’s consent.

1. E X P O S T A S S E S S M E N T O F
M E R G E R R E M E D I E S :
A N E X P O S T A S S E S S M E N T !
O E C D R O U N D T A B L E : 8 D E C E M B E R 2 0 2 3
G L O B A L F O R U M O N C O M P E T I T I O N
A M E L I A F L E T C H E R
C E N T R E F O R C O M P E T I T I O N P O L I C Y
U N I V E R S I T Y O F E A S T A N G L I A , U K
N.B. I am a Non-Executive Director at the CMA. Views are personal and do not necessarily reflect the position of the CMA.

2. TO COVER
 Why is the ex post assessment of merger remedies so important?
 What have we learned?
 Some final thoughts
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3. WHY SO IMPORTANT? (1)
 Remedies are critical to the success of merger policy.
 Ineffective remedies = allowing anti-competitive mergers!
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4. WHY SO IMPORTANT? (2)
 Remedies are not easy to design!
 Ex post assessment shows that they are frequently ineffective
or only partially effective. E.g. For those mergers where an
assessment could be made…
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Study Effective Partially Ineffective
FTC 2017 69% 14% 17%
EU 2005 65% 27% 8%

5. WHY SO IMPORTANT? (3)
 Authorities (and parties) need to know how to design them as
effectively as possible.
 Remedy assessments generate important lessons
 (arguably more valuable across jurisdictions than standard ex
post merger assessments – so valuable to share learnings)
 Authorities also need to know when to say no!
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6. KEY LESSONS #1
 Remedies need to be considered and designed carefully
 Problematic to leave remedies to the end of the process!
 Takes time to think through risks. Transparency and market-
testing can be critical.
 Even more important with multi-jurisdictional mergers.
o NB New proposed UK guidance would encourage
engagement on remedies early (without prejudice to
whether a merger is found to raise competition concerns).
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7. KEY LESSONS #2
 Structural tend to be better than behavioural, but….
 Carve outs less straightforward than selling whole businesses.
 Scope is critical (may well need to be larger than the
‘competition overlap’ to create a viable and attractive package).
o Back-office functions may also be needed.
 Non-degradation of assets is critical
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8. KEY LESSONS #2
 Monitoring the sales process is critical. The primary incentives
of party is to choose the least effective rival that the authority
will accept. Also to get a deal done.
 Due diligence of the proposed purchaser critical.
o Has it done proper due diligence?
o Has it got the ability and incentive to compete effectively
(financing important but also skills and experience).?
o Does it face any regulatory barriers?
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9. KEY LESSONS #3
 Access deals can be complex to get right (EU 2005 found success
rate of just 40%)
 Does it rely on FRAND terms? If so, what does this mean?
 Does the deal include all the necessary IP and know-how?
 Will it require ongoing monitoring?
 Is it long enough? And extendable if need be? Does it
sufficiently allow for changes in future conditions?
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10. KEY LESSONS #4
 ‘Back-up’ remedies may be justified.
 These are more intrusive but there if needed.
 NB. By the time it is clear that a remedy is not working as
intended, it is typically too late to unwind the merger. Or would
be disproportionate.
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11. SOME FINAL THOUGHTS (1)
 In digital ecosystem markets, we may expect to see a push for
more behavioural remedies.
 Early evaluation of these will be super-important for learning
how well they are working.
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12. SOME FINAL THOUGHTS (2)
 Are behavioural insights likely to be relevant?
 How much does a remedy’s success depends on consumer
behaviour?
 What about workers (divested as part of the deal)
 Is there a risk that either could be ‘steered’ by the merging
firm?
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13. SOME FINAL THOUGHTS (3)
 Could there be room for outcome-based remedies mergers?
 eg “measures must be enforced in a way that promotes
effective competition”?
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