Behavioural vs structural: the basic distinction
A structural remedy durably changes the structure of the market — typically through the divestiture of stores or assets to a competitor. A behavioural remedy only frames the firm's future conduct, without touching its perimeter.
The French Competition Authority, like most authorities, shows a clear preference for structural remedies: they are clear, verifiable and require no ongoing monitoring. Behavioural commitments are the exception, accepted when the problem is precise and temporary.
When divestiture becomes unavoidable
Whenever a transaction creates a strong structural overlap on a local market — high market shares, few credible alternatives for the consumer — the Authority generally requires a divestiture.
Decision 20-DCC-116 (Soditroy / E.Leclerc) is instructive: the Authority rejected a mere reduction in sales area. Without removing the structural overlap, the proposed remedy was deemed inadequate.
When a behavioural commitment can suffice
Behavioural remedies keep their place in precise configurations: a limited vertical problem, access to an infrastructure, a fixed duration, a simple monitoring mechanism. They are better received when easy to supervise and bounded in time.
Conversely, the more horizontal and durable the problem, the more the Authority will doubt that a conduct promise truly resolves the harm to competition.
- §One-off, verifiable problem: behavioural remedy is conceivable.
- §Structural horizontal overlap: divestiture is usually required.
- §Up-front approved buyer: a signal of heightened scrutiny.
The approved buyer as a marker of scrutiny
When the Authority requires an approved buyer before closing (up-front buyer), it signals a high level of scrutiny: it wants to ensure the divestiture will be effective and the buyer a viable competitor.
This requirement appears in the tightest markets, notably overseas, where decision 20-DCC-72 (GBH / Vindémia) combined divestitures with an up-front approved buyer.
Preparing remedies upstream
Anticipating the expected type of remedy avoids losing time during negotiation. It requires knowing the sector's precedents: which commitments were accepted, which were rejected, and in which market configurations.
This is exactly the kind of question L420 handles: 'in which cases was a behavioural commitment deemed insufficient?' surfaces the relevant decisions, with their verifiable references.