European and American Approaches to Antitrust Remedies and the Institutional Design of Regulation in Telecommunications
J. Gregory Sidak
This paper presents a perspective on remedies in network industries that is informed by American and European experiences with antitrust law and sector-specific regulation. In the United States and the European Union, the topic of remedies in network industries cuts across antitrust law and sector-specific regulation, including telecommunications. The legal and economic understandings of a remedy are not always synonymous. In both legal systems, a remedy is the corrective measure that a court or an administrative agency orders following a finding that one or several companies had either engaged in an illegal abuse of market power (monopolization in the US and abuse of dominance in the EC) or are about to create market power (in the case of mergers). With the exception of merger control where remedies seek to prevent a situation from occurring, legal remedies are retrospective in their orientation. They seek to right some past wrong. They may do so through the payment of money (whether that is characterized as the payment of damages, fines, or something else). Or they may seek to do so through a mandated change in market structure (structural remedies), as in the case of divestiture, or in the imposition of affirmative or negative duties (behavioral remedies).