Non-Structural Remedies and Their Key Strengths

Non-structural remedies are often referred to as ‘conduct’ or ‘behavioural’ remedies. They are focused on how a merged entity conducts its business. That is in contrast with structural remedies, which are focused on restoring competition by requiring changes to the structure of the merged entity.

There is a wide range of different types of non-structural remedies that vary depending on the nature of the potential harm. They include, for example, firewall provisions (to address potential information exchange concerns), provisions relating to the conditions of supply (to address concerns regarding potential foreclosure or exploitation) and provisions to sever links between competitors (to address potential unilateral or co-ordinated effect concerns). They can be deployed individually or in conjunction with other remedies. In particular, they are often imposed with structural remedies to ensure the effective implementation of the latter.

In general, the antitrust authorities have a preference for structural remedies over non-structural remedies. Non-structural remedies require continuous monitoring, may be less effective and may themselves distort competition. At the same time, non-structural remedies may be more suitable than structural remedies in cases involving vertical and conglomerate concerns and have certain other advantages. Non-structural remedies are flexible and can be specifically tailored to address the identified harm to competition. In some cases, non-structural remedies may also be offered in lieu of structural remedies (e.g., when divestiture is not feasible or proportionate while the concern may not warrant a blocking decision).

Types of non-structural remedies

Non-structural remedies can be broadly categorised with reference to whether implementation involves third-party market participants. If a remedy does not, it is an internal remedy (i.e., relating to how a firm manages and organises its internal businesses, such as through firewalls or ring-fencing); if it does, it is an external remedy (i.e., relating to how a firm interacts with third parties, such as terms of supply or licence). There are also remedies intended to address issues that are likely to affect the market or third parties but instead are focused on how a party conducts or organises its own businesses (discussed as ‘Other types of remedies’, below). We set out below an introduction to what the remedies under these three categories typically include.

Internal remedies

Firewall provisions

Firewall provisions restrict the access to and dissemination of competitively sensitive information within a firm. They seek to prevent exchanges that may have negative effects on competition, for example exchanges that may facilitate collusion or reduce the uncertainties of competitive conduct.

Firewall provisions may include a number of elements, focusing on prevention (e.g., non-disclosure agreements, separate information technology (IT) access, training and guidelines), detection (e.g., IT alerts for unauthorised access, periodic review of compliance with preventative measures) and correction (i.e., measures to resolve inappropriate access or dissemination, such as reassignment of relevant employees to posts where the information accessed is irrelevant).

Firewall provisions may be stand-alone requirements to address specific issues arising from the merger, typically with a focus on vertical and conglomerate issues. For example, a vertical merger may allow a supplier (one of the merging parties) to become aware of the price and terms of its competitor via that supplier’s customer (the other merging party). The customer (who is now a part of the merged entity) can also work as a conduit for information exchange between competing suppliers. If that is the case, firewall provisions may be imposed to prevent access to competitively sensitive information. They may also be imposed (or implied) as ancillary to structural remedies. They are often required (1) during the period between the clearance decision and the closing of the relevant divestiture, and (2) even after closing, for historical information held by the merged entity to the extent that it remains competitively sensitive, as part of the broader requirements to maintain viability of the divestiture business.

For example, in Nvidia/Mellanox (2020),^[2] the State Administration for Market Regulation (SAMR) required firewalls to protect confidential information about third parties that compete in adjacent markets in which either of the parties is active. In GE/Avio (2013), the European Commission required firewalls for the strategic information within a consortium.^[3] In Staples/Essendent (2019), the United States Federal Trade Commission (FTC) required firewalls restricting Staples’ access to commercially sensitive information about Essendent’s wholesale customers.^[4]

Hold separate provisions

Hold separate provisions require that the relevant business is run independently of the merged entity. They may be imposed as the main remedy, or one of several main remedies, to address horizontal concerns to recreate an independent competitor, in which case the merged entity will have effected a transfer of legal title but the relevant businesses will continue to be operated separately. Although they ensure that competition concerns would not arise (given the operation is not integrated), they remove deal synergies and are burdensome to implement and monitor. Therefore antitrust authorities are generally doubtful of using hold separate provisions to resolve competition concerns As examples, China’s Ministry of Commerce (MOFCOM, the predecessor of the merger control arm of SAMR) required holding the target business separate in the hard-disk cases, Seagate/Samsung (2011) and Western Digital/Hitachi (2012).^[5] The SAMR required holding the cargo logistic joint venture separate in Shanghai Airport/Eastern Air-lines Logistics (2022).^[6]

Besides, hold separate provisions are often imposed as one of the ancillary measures to preserve the value and competitiveness of the divestiture business during the divestiture period. This is discussed in the ‘Hybrid remedies’ section.

Research and development commitment

Research and development commitment requires the merged entity to continue its research efforts. It stems from the concern that the merged entity may have a reduced motivation for doing so that negatively affects innovation, for reasons such as having acquired existing products or more advanced research projects from the merger.

In Danaher/GE Healthcare (2020),^[7] a divestiture was ordered in connection with an early-stage pipeline research project. In addition to a transfer of tangible assets and a non-exclusive licence for the technology and trade secrets relating to that project, the merged entity was required to continue the research project for two years post closing, so as to increase the chance of success of the project and increase the number of products available on the market. In Maxlinear/Silicon Motion (2023),^[8] SAMR required the merger entity to retain Silicon Motion’s research and development activities in Taiwan and to retain onsite engineers in China as part of the research and development resources.

Transparency provisions

Transparency provisions require the merged entity to provide information about how it has implemented the remedies. The purpose is to enable the antitrust authority to promptly detect (or be made aware of) potential non-compliance with the remedies and take necessary actions with respect to any non-compliance.

Transparency provisions may involve some or all of the following elements:

• reporting on the measures taken to implement the remedies;
• reporting on any potential breach of the remedies and, if there are any breaches, the measures taken to address the issues;
• reporting on fulfilment of remedy obligations, particularly at the end of the duration of non-structural remedies and the closing of structural remedies; and
• obligations to produce other information, arrange interviews with employees, or provide other assistance as is reasonably required by the authority (or the monitoring trustee) to verify compliance with the remedies.

In QEP/EQT (2023),^[9] for example, the US FTC required monitoring provisions for up to 10 years in connection with the seller’s commitment to waive appointment rights to a director on the board of the acquirer and its six largest natural gas production competitors to address potential interlocking director concerns. The frequency of reports under transparency provisions depends on a balance of reasonably prompt detection of non-compliance and the potential burden on the merged entity. It could be monthly (e.g., on the progress of a carve-out during the divestiture period), half yearly or yearly (e.g., remedies on contracting practices). Transparency provisions are by nature ancillary and are usually imposed in connection with any other remedies required by antitrust authorities.

External remedies

External remedies relate to how a firm interacts with market participants. Some of these remedies, including non-discrimination and prohibition on certain contracting practices, can be seen as imposing on the merged entity the obligations that a dominant firm would need to bear under the ordinary antitrust rules, including expanding those obligations, regardless of whether the merged entity may or may not meet the antitrust threshold for dominance or the other criteria required to establish an abuse. Other external remedies may be more substantial, for example mandatory supply contracts or licensing non-standard essential patents at fair, reasonable and non-discriminatory (FRAND) terms.

Non-discrimination and access provisions

Non-discrimination requires the merged entity to treat other market participants in a fair and even-handed manner. It may be imposed when there are concerns that the merged entity controls certain key inputs and may utilise them to foreclose competitors in a downstream market that rely on such inputs, by offering less favourable terms or refusing to supply. It may also be imposed when there are concerns that customers do not have sufficient countervailing power and may be subject to discriminatory treatment. This is similar to the prohibition against differential treatment under antitrust rules.

In particular, non-discrimination may take the form of requiring the merged entity to provide a level of interoperability between its services and (certain) third-party services to the same standard as the interoperability between its own services, or between its services and other third-party services. For example, in AMD/Xilinx7 SAMR required the merged entity to maintain a level of interoperability with third-party CPU, GPU FGPA products at no less than the level with the merged entity’s own products. In Broadcom/VMware (2023),^[10] the European Commission required Broadcom to commit on access and interoperability, including (1) guaranteed access to the interoperability application programming interfaces as well as to the materials, tools and technical support necessary for the development and certification of third-party FC HBAs, and ensuring their interoperability with VMware’s server virtualisation software; and (2) guaranteed access to the source code for all of Broadcom’s current and future FC HBA drivers through an irrevocable open-source licence. In Northrop Grum-man/Orbital ATK (2018), the FTC required US missiles systems provider Northrop Grumman to supply solid rocket motors to competitors on a non-discriminatory basis. The settlement required Northrop to separate its solid rocket motors operations from the rest of the company with a firewall.^[11] In Comcast/NBC Universal (2011), to address concerns that the joint venture could stifle the emergence of online video competitors, the US Department of Justice (DOJ) conditioned clearance on the parties’ agreement to license programming to online competitors.^[12] However, the DOJ signalled scepticism at the effectiveness of these remedies when it refused to accept a firewall or non-discrimination remedies to address its concerns in AT&T/Time Warner (2018).^[13]

Access provisions require the merged entity to allow other market participants access to certain key inputs. These may include key technologies, data, network and infrastructure. Access provisions are often required when the merged entity may have the ability to leverage such key inputs and foreclose competitors. These remedies may draw on the concepts of FRAND terms used in licensing standards. For example, in Orange/VOO/Brutélé (2023),^[14] the European Commission required Orange to provide to Telenet at least 10 years of access to the existing fixed network infrastructure it is acquiring from VOO and Brutélé in the Walloon region and parts of Brussels, and its future fibre-to-the-premises network; in Meta/Kustomer (2022),^[15] the European Commission conditioned the clearance on Meta’s guaranteeing non-discriminatory access to publicly available APIs and making available to rivals equivalent access to core APIs; in London Stock Exchange/Refinitiv (2021),^[16] the European Commission cleared the transaction on the conditions that (among others) the merged entity will allow access to its certain data by all existing and future downstream competitors. See also above on Broadcom/VMware (2023).

In practice, designing, complying with and enforcing both non-discrimination provisions and (to a lesser extent) access provisions could be challenging. They require monitoring, a mechanism for complaints or dispute resolution and (in some cases) a substantive assessment of a firm’s eligibility for non-discriminatory treatment or access. For example, there may be questions on whether two downstream competitors of the merged entity are materially similar in relevant aspects, such that a non-discriminatory treatment is warranted (or may in fact be unfair to one of the two firms). In practice, access provisions may be most effective in regulated markets where there is transparency and independent oversight.

Mandatory licensing provisions

Mandatory licensing provisions require the merged entity to license certain technology, know-how and intellectual property rights to third parties. The underlying concern is often the consolidation of technologies and intellectual property may allow the merged entity to foreclose other competitors who rely on some of these technologies to compete effectively. These provisions may require licensing certain intellectual properties or products to all eligible and interested third parties. For example, in Microsoft/Nokia, MOFCOM required Microsoft to continue to license certain standard essential patents on FRAND terms.^[17]

As another example, in Microsoft/Activision, the European Commission’s clearance was conditional upon Microsoft offering a free licence to EEA consumers to stream, via any cloud game streaming services of their choice, all current and future Activision Blizzard PC and console games for which they have a licence, and a corresponding licence to cloud game streaming service providers.^[18] These provisions may also require an exclusive licence to a single licensee, effectively in lieu of a divestiture. For example, in CoreLogic/DataQuick (2018), the FTC conditioned the acquisition on CoreLogic’s agreement to license property value data to a new entrant in the market for national assessor and recorder bulk data.^[19]

Although the antitrust authority may start with a preference for a divestiture of some of the technologies, a mandatory licensing requirement could be useful when the technology in question covers products not concerned by the transaction. It may also be useful if the antitrust authority intends for the merged entity and the licensee to both have the technology, thus potentially increasing the options available to customers.

Meanwhile, licensing arrangements may create a long-lasting link between the merged entity and the licensee. This may create potential risks of information exchange or affect the licensee’s motivation in utilising the licensed technology and competing with the merged entity.

Anti-retaliation provisions

Anti-retaliation provisions prevent the merged entity from retaliating against customers or other market participants for transacting with the merged entity’s competitors. They are similar to requiring the merged entities not to enter into exclusive supply provisions with their customers, but rather to capture a broader scope.

Anti-retaliation provisions may also be used to protect whistle-blowers who report the merged entities’ non-compliance with other remedy provisions to the antitrust authority. These are used less often, as the identity of a whistle-blower is typically confidential information protected by the antitrust authority.

Prohibitions on certain contracting practices

The merged entity may be required to abstain from certain contracting practices, depending on the concerns identified by the antitrust authority and as voiced by customers. These contracting practices may include exclusivity and bundling or tie-in. In certain cases, modification of future conduct may not be sufficient. In that case the merged entity may be required to also terminate existing contracts.

As an example, in the penalty decision against Tencent’s failure to notify its acquisition of China Music Corporation (2021),^[20] SAMR required Tencent not to (1) enter into future exclusivity copyright agreements with copyright holders and terminate any existing exclusivity agreements (with limited exceptions), (2) seek from copyright holders terms more favourable than those available to Tencent’s competitors, and (3) provide significant deposits to copyright holders or use other means to increase competitors’ costs.

In Amgen/Horizon (2023), the FTC required the parties to commit to not bundling any of the acquirer’s products with certain blockbuster products of the target to address potential conglomerate foreclosure concerns.^[21]

As a further example, in 2013 Google agreed to change its standard essential patent (SEP) licensing practices to settle charges brought by the FTC alleging that Google’s practices stifled competition among manufacturers of electronic devices. As part of the settlement, Google (1) reaffirmed its commitment to allow competitors to access SEPs on FRAND terms, (2) agreed not to seek injunctions to block rivals from using patents essential to key technologies and (3) agreed to modify certain contractual provisions governing the APIs that advertisers use to access its online search advertising platform, AdWords.^[22]

Mandatory supply contract provisions

Mandatory supply contract provisions limit the discretion of the merged entity to determine whether to supply or the terms of supply. These provisions may involve price caps, minimum volume requirements or obligations to supply as long as certain conditions are met (e.g., reasonable terms proposed by the customer, with spare capacity, in stock).

While mandatory supply provisions may appear to be an effective tool to ensure supply, there may be doubts as to whether, in some cases, they could potentially distort competition and create more issues than they solve. For example, if the merged entity is a significant supplier and can unilaterally determine the terms of supply to customers, it needs to be assessed whether a commitment intended to ensure supply to customers on favourable terms by imposing price caps and minimum volume requirements might lead to more issues for the growth of competition in the longer term.

In SK hynix/Intel (2021),^[23] SAMR required the merged entity to supply certain products based on reasonable pricing and at an increasing volume, to supply all relevant products based on fair, reasonable and nondiscriminatory terms for five years. Reasonable pricing is determined based on the 24-month average price before clearance.

In T-Mobile/Sprint (2019),^[24] to support an effective entry by a competitor who purchased the divestiture assets, a condition of the settlement was that the merged entity was required to make available to the new competitor certain cell sites and retail locations, as well as to provide access to the T-Mobile network for seven years.

Other types of remedies

A wide range of other types of behavioural remedies exist, as behavioural remedies can be designed specifically to address the harm. Some of the more typical types are discussed below.

Employee restrictions

Employee restrictions are often imposed to facilitate divestitures, with the aim of maintaining viability and competitiveness of the divestiture business. These restrictions seek to ensure that employees who are crucial to the operation of the divestiture business remain with the business. Employee restrictions may include providing incentives for certain employees to remain with the divestiture business and a non-solicitation clause that prevents the merged entity from poaching employees transferred with the divestiture business. Employee restrictions are rarely imposed individually.

Prior approval provisions

Prior approval (or prior notice) provisions impose additional filing or reporting obligations in respect of future transactions contemplated by the merged entity, or, in limited cases, require the merged party not to make further acquisitions. It may involve a merger filing prior to implementation, or a prior notice. It ensures the antitrust authority is made aware of potential further changes to the market structure, regardless of whether the contemplated transaction meets the relevant jurisdictional threshold. It also helps the authority avoid having to utilise the jurisdiction to proactively investigate transactions below the notifiability threshold (typically referred to as ‘residual jurisdiction’). Prior approval provisions include two categories: those relating to further acquisitions in the same horizontal markets and those relating to further acquisitions in vertical or adjacent markets.

For example, in HP/Samsung (2017), in which HP acquired the A4 laser printing business of Samsung,^[25] HP undertook not to make any further acquisitions in the A4 laser printing machine market in China, including even a minority interest. In other cases, the prior approval provisions are designed more broadly – in Essilor/Luxottica, the SAMR imposed a remedy that the merged entity should report any further concentrations involving a Chinese business within 10 working days of the relevant agreements being executed.^[26] Similarly, in the penalty decision against Tencent’s failure to notify its acquisition of China Music Corporation (2021),^[27] the SAMR required Tencent to make prior notifications for future transactions that do not meet the notifiability threshold but may have the effect, or likely effect, of excluding or limiting competition before closing the transaction.

Notably, the FTC has shown a return to the long-standing practice of requiring parties that have proposed unlawful mergers to receive prior notice for future transactions, by rescinding its 1995 policy statement.^[28] The FTC has also, in some cases, imposed prior approval provisions on divestiture buyers to incentivise the purchaser to maintain the competitiveness of the business. In Linde/Praxair (2018), for example, the FTC addressed concerns about continued investment by a private equity co-investor by requiring prior approval for any exit of the business.^[29]

Non-structural remedies versus structural remedies

Issues associated with non-structural remedies

Non-structural remedies modify the future conduct of the merged entity on a continuing basis. These lead to several issues that may affect the effectiveness of non-structural remedies.

Non-structural remedies require constant implementation and monitoring. Both the merged entity and the antitrust authority may incur significant costs. In addition, in some cases (for example because of unexpected changes in market condition), the merged entity may have increased motivations to attempt and circumvent.

When using non-structural remedies as the primary solution to competition concerns (in contrast with ancillary non-structural remedies), an effective design and implementation can often be challenging from the perspectives of both the merged entity and the antitrust authority. It requires, inter alia, forward-looking estimation of market conditions, competition dynamics, customer and competitor reactions to the conduct modified by the remedies. An example is to ascertain how long the non-structural remedies are necessary (i.e., how quickly the market can change) and whether the remedies should end by default, by a notice or by an approval after a substantive review. Besides, for antitrust authorities, other factors, including feasibility and costs of subsequent monitoring, may also be relevant.

Non-structural remedies may distort the competition dynamics in the relevant market, and may limit the merged entity’s ability to compete in the most effective way.^[30]

Meanwhile, non-structural remedies have their own merits, which should not be overlooked. Non-structural remedies have a potentially broader scope of application, as a result of their flexibility. In particular, non-structural remedies are useful supplements to ensure the effectiveness of structural remedies.

When used as the primary solution to competition concerns, non-structural remedies can be structured specifically to preserve deal synergies. In contrast, structural remedies may have a significant effect on deal synergies. Non-structural remedies can also work as substitutes when structural remedies may be not feasible or proportionate. For example, the hold separate remedies in MOFCOM’s decisions in the hard disk drive cases^[31] ensured independent competition until solid state drives became an effective competition constraint on hard disk drives, while divestitures were not required (which would probably have resulted in deal abortion).

The competition concern may dissolve quickly in fast-developing sectors (such as the digital space). In such cases, a ‘permanent’ divestiture may be disproportionate or not suitable in the longer term. Non-structural remedies for a prescribed period may suit better.

Preference for structural remedies

Because of the issues discussed as above, antitrust authorities’ general preference is for structural remedies. This is the case for the European Commission (EC)^[32] and similarly in the United States, although the position of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) of showing disfavour to non-structural remedies has changed a few times in the past.

Meanwhile, some antitrust authorities tend to have a greater willingness and be more open to behavioural remedies, partly because of a different emphasis on the theory of harm. In this respect, it is known that of all SAMR/MOFCOM remedy cases, those involving non-structural remedies represent a materially larger portion than the cases reviewed by the EC, the FTC and the DOJ, especially in the earlier MOFCOM years. The SAMR has not publicly commented on its underlying policy considerations, but some observations can be made. First, the SAMR appears to be more willing to bear the regulatory burden of monitoring ongoing obligations compared to their counterparts in other jurisdictions. Second, the SAMR places more emphasis on vertical and conglomerate issues, particularly when the supply to Chinese companies (including downstream competitors) may be affected by the transaction. Behavioural commitments could be more effective in ensuring supply to Chinese companies as compared with divesting the relevant business to another company, while competition concerns in these transactions may not be sufficient to justify a divestiture.

Hybrid remedies

Non-structural remedies are often imposed in connection with structural remedies, to ensure the purchaser can operate the divestiture business viably and competitively. In these cases, the non-structural remedies are interim in nature and not in themselves the solution to the harm identified, but are safeguards to ensure that the solutions (i.e., structural remedies) are implemented effectively.

Non-structural remedies ancillary to a divestiture are often determined according to the specific scope and nature of the divestiture business, and also the capabilities of the purchaser. The usual remedies include:

• firewall provisions to prevent the exchange of competitively sensitive information about the divestiture business;
• employee restrictions to ensure staff that are key to the operation of the divestiture business remain with the business;
• transfer of customers to help the divestiture business build track records and maintain business continuity, often with a commitment not to solicit those customers for a reasonable period; and
• transitional service arrangements (i.e., equipment rental, raw material supply, shared IT services).

The purposes of these arrangements are to (1) facilitate a swift closing of the divestiture, (2) ensure the purchaser can already operate the divestiture business as of closing, and (3) allow the purchaser a reasonable period to prepare the divestiture business for being operated independently from the merged entity. The antitrust authority would usually require these transitional services be provided at cost, in line with existing intra-group terms or with customary trade terms if some of the services are ordinarily provided to third parties.

It should be noted that non-structural remedies need to avoid over-enhancing the purchaser of the divestiture business to the effect that competition may be distorted. For example, non-solicitation periods for employees or certain customers should be limited to the necessary length by the end of which the divestiture business would be able to compete for them on the merits.

In Danfoss/Eaton (2021),^[33] the SAMR required the merged entity to provide products and services to the divestiture business for a transitional period of up to 24 months on the same terms as before the clearance or at cost. The SAMR also required the divestiture business to be held separate and ring-fenced until closing, and to benefit from an employee non-solicitation clause for two years post-closing. Another example is Linde/Praxair (2018), in which the SAMR required ancillary support to ensure the buyer can operate the divestiture business. The ancillary support was specifically designed to be comprehensive and broad, so that an entrant completely new to the divestiture business would have all the support required to operate it. In Advent/Gfk (2023),^[34] the European Commission required Advent to provide transition services to the purchaser following the divestment of GfK’s global consumer panel services business (with the exclusion of its operations in Russia), such as rebranding, access to IT services or access to support functions, for a transitional period of up to one year, which may be extended by up to two additional years.

Drafting tips for non-structural remedies

How well the remedies are drafted will often significantly affect how the remedies are implemented. Each case would differ, but some general principles can always be considered.

Complex behavioural remedies can require significant resources to implement and to monitor, putting an additional burden on both the merged entity and the antitrust authority. When drafting the remedies, it is always useful to consider the resources required by different mechanisms and to try to find practical and efficient mechanisms that are equally effective.

Clear and precise drafting is key. The merged entity may have a tendency to interpret the remedies narrowly or favourably to retain business discretion as much as possible. In addition, non-structural remedies often apply on a continuing basis over a relatively long period. As time passes, it becomes increasingly difficult to return to the contemporaneous materials created when drafting the remedies in order to confirm their implied or unspoken meaning of the remedies.

Comprehensive analysis of underlying assumptions of the remedies is recommended, especially for remedies that relate to future market-facing conduct. These underlying assumptions can be made clear to the antitrust authority or condensed into ‘exceptions’ in the remedies. From the perspective of the merged entity, it is often useful to add these as reasonable exceptions to the remedies to enable the flexibility to handle unexpected developments. For example, a guaranteed volume of supply may be underpinned by a positive projection of market expansion, but should have a caveat in the event of a significant economic slowdown, such as during the covid-19 pandemic. From the antitrust authorities’ perspective, these exceptions should be limited and preferably linked to objective benchmarks (e.g., certain public indexes), to reduce the possibility of disputes or circumvention of the merged entity.

Notes