Importantly, from the legal point of view, the application of competition law has always been conditional on a deliberate act to trigger the rule, either a concentration, an abuse or an anticompetitive agreement. This condition of deliberate action completely disappears in the case of control of market concentration by means of a structural injunction. Companies are considered to be at fault and are subject to drastic measures going so far as to impose behavior or structural remedies on them not on the grounds of conduct they may have adopted but solely because of their presence on the market (see Louis Vogel, cited above ).
Such an approach is highly damaging to legal certainty, and the market assessment authorizing intervention carries a significant risk of arbitrariness and is very difficult to control.
The implementation of structural injunctive measures is also likely to undermine the economic efficiency of undertakings by leading to a reduction in economies of scale.
Finally, experience has shown that de-concentration measures are particularly difficult to implement, in particular when the situation of the undertakings concerned is the result of their internal growth (see, W. Adams, Dissolution, Divorce, Divestiture: The Pyrrhic Victories of Antitrust, 27Ind. LJ 1 (1951).
All of these reasons led to the rejection of proposals for structural injunction remedy in the United States.
After some countries integrated such schemes, such as the United Kingdom and Greece, it was introduced in France for certain overseas territories relating to retail trade (Law No 2012-1270 of 20 November 2012) and in New Caledonia and then in French Polynesia without much success. The scheme has since been repealed in French Polynesia.
The Law of 6 August 2015 had provided for the introduction of a structural injunction in mainland France following the request of the Competition Authority (Opinion No 12-1-01 of 11 January 2012, para. 192) although legal commentators (M. Malaurie-Vignal, L’injonction structurelle et le projet de loi Macron, D. 2015.690; D. Bosco, Une nouvelle injonction structurelle décomplexée, CCC 2013, Repère 1) and legal practitioners have expressed their opposition to this new instrument.
The Constitutional Council (Conseil constitutionnel) in Decision No 2015-715 DC of 5 August 2015 (E. Claudel, La loi Macron au crible du contrôle de constitutionnalité : feu l’injonction structurelle ?, RTD Com. 2015.699), judged this instrument to be excessively prejudicial to entrepreneurial freedom and to property rights insofar as it may lead to the disputing of prices or margins or lead to asset disposals when the dominant position may have been acquired on their merits and no abuse was found. The draft was therefore rejected by the Constitutional Council.
The current European project is even more problematic in that, among its various, it envisages imposing it in all sectors of the economy (options 1 and 3). The more limited options are not much better since they target all sectors considered as problematic, such as the digital sector which is very broad.
The Commission would appear to on the verge of repeating the error committed under French law in having imposed a general law on restrictive and abusive practices to combat abuses by the mass retail sector, but which has been generally applicable and has complicated the life of French businesses for 50 years, specifically in terms of the terminations of commercial relationships, to such an extent that the EGalim Ordinance of April 2019 even had to introduce a capping scheme to limit the pernicious effects on the country’s economy. A particular problem cannot be not solved by a general provision that goes beyond its scope without creating significant perverse effects.