Dr. Anush Ganesh, Ganesh, A. (2024). Effective remedies in digital market abuse of dominance cases. European Competition Journal, 21(2), 371–420. https://doi.org/10.1080/17441056.2024.2440222
Remedies are where competition law either fulfils or betrays its purpose. Decisions and fines may fill casebooks, but they rarely alter market realities. In digital markets, the gap between legal victory and economic transformation has become too wide to ignore. The real question is no longer whether dominance exists, but how — and whether — it can be undone.
For too long, remedies in abuse of dominance cases have been treated as procedural epilogues, neat legal closures that mark the end of the enforcement story. Yet markets rarely heal themselves. Remedies have remained largely ineffective because enforcement still clings to a narrow reading of efficiency and proportionality, rather than confronting the structural roots of power.
I. The illusion of success
The paradox of modern digital enforcement is stark. Despite decisive findings in landmark cases such as Google Shopping, Android, and AdSense, entrenched digital monopolies continue to dominate. Prohibitions and fines are issued, but the architecture of control — over data, interfaces, and algorithmic visibility — remains untouched.
The Google Shopping case illustrates the problem. The Commission ordered Google to provide “equal treatment” to rival comparison services, a principle that sounds fair but proved hollow. Formal adherence to equality failed to deliver substantive fairness, since Google retained the power to define what “equal” meant within its own algorithmic ecosystem. The result was the illusion of compliance without the substance of change — a legal fiction that allowed dominance to persist beneath the veneer of remedy. This outcome reveals a deeper issue: remedies designed for industrial monopolies cannot repair digital ecosystems. Traditional remedies presuppose identifiable assets and discrete markets; digital dominance thrives in diffuse, interlocking systems. Applying static prohibitions to such environments is like “applying a plaster to a cloud” — an act of procedural tidiness in the face of structural complexity.
II. Between structure and behaviour
Competition law has long oscillated between two poles of remedy design: the structural and the behavioural. Structural remedies — divestitures, separations, asset sales — promise clarity but are often too blunt to fit digital architectures. Behavioural remedies — obligations to act or refrain — offer flexibility but demand constant monitoring and trust in the offender’s goodwill.
The European Commission’s reliance on behavioural remedies has produced a culture of remedial minimalism, justified in the name of proportionality. Yet proportionality, in this context, has come to mean timidity. Prohibitions are imposed without redesigning the incentive structures that sustain exclusion. Markets, in turn, remain locked in path dependency.
This minimalism assumes that once prohibited, abuse will cease and the market will self- correct. But digital ecosystems are not self-correcting. Network effects and data feedback loops render dominance self-reinforcing. As long as gatekeepers control key interfaces, prohibitions simply freeze existing hierarchies.
Behavioural obligations also highlight the institutional limitations of enforcement. Monitoring compliance in algorithmically governed markets demands expertise in code, data, and system design — expertise that most competition authorities still lack. Without such technical competence, oversight devolves into procedural box-ticking. Compliance becomes symbolic: formal reports are submitted, dashboards are created, and the substance of control remains intact.
III. The tyranny of time
Digital markets evolve in real time, while enforcement moves at a bureaucratic pace. There is a profound temporal mismatch between the rhythm of regulation and the velocity of digital adaptation. Investigations take years; markets transform in months.
The Microsoft interoperability saga is emblematic. The order to disclose interface information was technically obsolete by the time implementation began. In Android and AdSense, enforcement similarly lagged behind technological evolution: by the time remedies were applied, the centre of market power had already shifted elsewhere.
When the law arrives too late, it loses both deterrent force and legitimacy. Fines become a cost of doing business, and remedies become rituals of governance — procedurally perfect, economically irrelevant. Ex post enforcement simply cannot discipline systems that are adaptive by design.
IV. An adaptive paradigm for remedies
To remain effective, remedy design must evolve from static deterrence to adaptive governance. Remedies must cease pretending to be neutral and instead embrace their normative function: shaping markets that are fair, open, and resilient.
Prevention over reconstruction. The Digital Markets Act represents the first coherent response to the chronic failures of ex post enforcement. By imposing obligations before harm occurs, it acknowledges that in digital ecosystems, prevention is the only effective form of cure. Obligations such as interoperability, data access, and bans on self-preferencing transform remedies from acts of repair into instruments of design.
Technical competence. Effective remedies presuppose understanding of technology. Dominance is now embedded in architecture — in algorithms, APIs, and data flows — not simply in price or output. Enforcement capable of reading only contracts, not code, is destined to chase shadows. As Ezrachi and Stucke note, “the true seat of power lies in design decisions embedded in cod — invisible, persistent, and self-executing.” Remedy design must therefore integrate engineers, data scientists, and system architects into the legal process.
Iteration and resilience. Remedies cannot remain static when the markets they regulate evolve daily. Obligations must be subject to continuous review, outcome-based assessment, and periodic recalibration. Sunset clauses, experimental pilots, and iterative benchmarking should replace one-off orders. This transforms remedies from singular acts into living instruments.
Empirical realism. Firms adapt to rules faster than rules adapt to firms. Remedy design must anticipate strategic behaviour, gaming, and circumvention. Empirical testing and behavioural insight must guide enforcement, grounding remedies in observed market behaviour rather than theoretical compliance.
V. Fairness as the normative core
At the centre of effective remedy design lies fairness. Efficiency, long enshrined as the guiding principle of antitrust, cannot legitimise outcomes that perpetuate inequality. Fairness provides the missing ethical and functional dimension.
A fair remedy does not merely prohibit harm; it restores reciprocity. It limits domination and rebalances opportunity. It also reframes proportionality: proportionality should not mean minimalism, but adequacy — a remedy commensurate with the scale and persistence of the harm. In digital markets, adequacy demands depth, not restraint. Fairness also performs a stabilising role. It sustains public trust in enforcement and mitigates the risk of regulatory capture. As Geradin et al. have observed, “remedies that fail to engage with fairness undermine not only effectiveness but the legitimacy of the competition system itself.” Fairness thus links technical remedy design with democratic accountability.
VI. From efficiency to resilience
Efficiency once provided the unifying rationale for competition law. Yet in a world defined by crisis and complexity, efficiency alone is a brittle ideal. The future demands a shift from efficiency to resilience — from static optimisation to dynamic endurance.
Resilience describes the market’s capacity to absorb shocks without degenerating into concentration. Remedies that build resilience strengthen not only competition but the constitutional fabric of the market economy. They align competition law with broader principles of sustainability and governance.
Resilient remedies are interdisciplinary by necessity. They require coordination across competition, consumer, and data policy. They treat remedy design as continuous governance, not episodic intervention. The authority does not withdraw after judgment but acts as a steward of fair and contestable markets.
VII. The ethical horizon of enforcement
Remedies are not technical instruments; they are moral acts. They decide who holds power in the digital economy and under what constraints. A fine punishes; a remedy redistributes power. Remedies, therefore, embody the moral horizon of competition law — its answer to the question of what markets are for.
A law that punishes without repairing cannot claim legitimacy. A law that repairs – thoughtfully, empirically, and fairly — restores not only competition but trust. Effective remedies are not mechanical appendices to enforcement; they are its ethical and operational core.
When remedies rebuild fairness, functionality, and resilience, competition law ceases to be reactive and becomes truly transformative. In the digital age, where dominance is coded into infrastructure, the capacity to design effective remedies is no longer a procedural detail. It is the test of whether antitrust still has the power to serve society, rather than merely describe it.