Remedies and Sanctions in Abuse of Dominance Cases

In recent years, the OECD's Competition Committee has held a number of roundtable discussions on issues related to liability in abuse of dominance cases; in its June 2006 meeting, the Committee turned its attention to the question of what to do with companies once their liability has been established. A Background Note by the Secretariat addresses the potential objectives of various types of remedies and sanctions, general suggestions for designing effective remedies, specific types of remedies and sanctions and their respective strengths and weaknesses, and the remedies and sanctions applied in recent cases. In the oral discussion, the Committee first addressed the contentious issue of whether it is appropriate to impose fines in abuse of dominance cases. While some delegations view abuse cases as conceptually similar to cartel cases (in which fines may be imposed in every OECD member country), others do not impose fines because they have concluded that abuse of dominance is so difficult to identify that defendants cannot reasonably be expected to know that their conduct will constitute a violation. The Committee then discussed the advantages and disadvantages of structural versus behavioural remedies, as well as the utility of conducting follow-up studies to determine how effective remedies turned out to be in previous cases. Finally, the discussion included analyses of the remedies imposed in a number of illustrative competition law cases