Competition authorities have long relied on structural remedies to address anti-competitive concerns. But what if the future of competition law now lies not in restructuring companies but in changing how they behave?

Behavioural remedies, which focus on modifying a company’s conduct rather than its structure, have gained traction in recent years, particularly in the fast-evolving digital markets. With this shift, we look at whether 2025 could mark the year when behavioural remedies become the go-to tool for competition authorities.

Behavioural remedies are at the heart of the European Commission’s Digital Markets Act

Europe is often portrayed as the home of behavioural remedies. It’s worth remembering, however, that this is a relatively recent phenomenon. Until the 2010s, the EC, like other competition authorities, was largely resistant to behavioural remedies. Since then, the Commission has increasingly turned to behavioural remedies to address problematic mergers.

The Digital Markets Act (DMA) is perhaps the culmination of this evolution. Rather than relying on structural fixes, the DMA imposes behavioural obligations on digital gatekeepers, such as ensuring non-discriminatory access to platforms and adhering to data-sharing requirements, and reserves structural remedies as an intervention of last resort. These obligations are designed to level the playing field and promote competition in digital markets, where rapid innovation and market complexities make traditional structural interventions less effective.

The UK’s digital market shift: behavioural remedies enter the conversation

In the UK, the Digital Markets, Competition and Consumer (DMCC) Act signals a similar change. The Act gives the Competition and Markets Authority (CMA) the power to impose bespoke, ex ante behavioural remedies on companies in digital markets, including design alterations and enhanced transparency requirements. This marks a significant shift from the UK’s traditional reliance on structural remedies, reflecting a growing recognition that the fast-moving markets of the 21st century economy require more nuanced interventions.

More broadly, as the CMA starts to flex its new consumer powers under the DMCC, behavioural economics will play a central role in many consumer protection cases in the evidencing of breaches and setting the remedies. The cornerstone of this work, and of many antitrust cases, will be online choice architecture (OCA). OCA refers to the design of digital environments that use behavioural nudges to guide users towards certain decisions and choices. When OCA is used in ways that have negative impacts on consumers, these practices are known as ‘dark patterns’. The CMA has been developing its expertise and thinking in this area with its much-publicised OCA programme, which has already led to urgency selling cases against Emma Group and Simba Sleep.

Behavioural remedies in the Vodafone/Three merger

The Vodafone/Three merger in the UK offers a telling example of the CMA’s evolving stance on structural versus behavioural remedies. At Frontier, where we acted as economic advisers to Vodafone throughout the case, it has been fascinating to observe the evolution of the CMA’s thinking.

In its provisional findings, the CMA indicated that the merger could go ahead with the imposition of behavioural remedies, including commitments to invest in network expansion and safeguard customer protections. This marks a significant departure from the watchdog’s traditional reliance on structural remedies, demonstrating a more flexible approach to addressing competition concerns.

Rather than blocking the merger outright or imposing drastic structural changes, the CMA shifted focus towards finding a solution that released the wider economic benefits of the merger, while ensuring that the companies involved behave in ways that preserve competition and protect consumers. The case exemplifies how behavioural remedies can offer a nuanced solution to complex competition issues.

Within the CMA, one suspects the lessons from the Microsoft/Activision merger are still front of mind. That high-profile case highlighted how relying solely on structural fixes might not always lead to the most effective outcomes for consumers and the wider economy, especially in fast-changing sectors like digital and telecoms.

This shift is now being embedded into policy thinking. CMA Chief Executive Sarah Cardell recently outlined a series of proposals aimed at driving growth, investment, and business confidence, including a consultation on the authority’s approach to remedies. As part of its wider "4Ps" reform agenda – focusing on improving the pace, predictability, proportionality, and process of CMA investigations – the CMA will be consulting on how remedies, including behavioural ones, should be designed and applied in future cases.

In announcing these reforms, Cardell referenced the Vodafone/Three case as an example of the CMA’s evolving approach to remedies, highlighting it as a potential blueprint for how the authority may balance pro-competitive investment benefits with competition concerns in future cases.

The role of behavioural economics in remedy design and implementation

The increasing reliance on behavioural remedies necessitates a deeper understanding of behavioural economics to enhance their effectiveness. These remedies require full alignment between how companies conduct themselves in practice, how they interact with consumers and the impact of specific market structures and behaviours on competition.

Our work on subscription traps in the antivirus market highlights how behavioural economics can be used to design remedies that address the root causes of anti-competitive behaviour, without disrupting the market unnecessarily. As competition authorities increasingly turn to behavioural remedies, robust economic analysis, including the appropriate use of behavioural trials, will be essential for assessing their potential impact and fine-tuning their design.

Monitoring and enforcing behavioural remedies: a key challenge

Behavioural remedies are fundamentally different from structural remedies when it comes to monitoring. They require ongoing scrutiny and enforcement to be effective. This is particularly challenging in rapidly evolving digital markets, where dynamics can shift quickly. Authorities will need to develop innovative methods for verifying compliance and ensuring that remedies continue to address the underlying concerns.

From a business perspective, this raises the issue of how to manage and demonstrate compliance without drowning in a sea of bureaucratic process. Monitoring mechanisms must be both effective and adaptable, particularly when dealing with fast-moving sectors. The growing reliance on behavioural remedies underscores the need for agile, data-driven monitoring systems that can keep pace with market changes.

As our expertise in behavioural economics and consumer psychology continues to grow, we are well-positioned to help clients navigate these challenges. Our team is focused on ensuring that behavioural remedies are not only effective but also practical and proportionate to the issues at hand.