Best and Even Better Practices in Commitment Procedures after Alrosa: The Dangers of Abandoning the 'Struggle for Competition Law'
46 Pages Posted: 10 May 2013
Date Written: June 1, 2012
Abstract
The article critically discusses the "Commitment Procedure" under Article 9 Regulation (EC) 1/2003, a procedure that can be compared to settlements in US antitrust law, or administrative contracts in various EU Member States. The European Commission, after a preliminary assessment of the facts, may make commitments offered by the parties binding on them. Far from being the exceptional procedure it was originally intended to be, the procedure has become the standard route for all but hardcore cartel cases, most recently and prominently in the Google case. As the recent fining decision in the Microsoft case has shown, the Commission is serious about enforcing the commitments made binding on the parties.
The article discusses the experience with, and the pros and cons of the Commitment Procedure, and the limited judicial review that is available against Commitment decisions that make disproportionate or, conversely, ineffective commitments binding on the undertaking. The article also discusses the effects of Commitment decisions on private enforcement, and enforcement by National Competition Authorities (NCAs).
Keywords: Antitrust Law, Competition Law, Commitment procedure, Alrosa, judicial review, proportionality, settlement
JEL Classification: K21, K23, K40, K41, K42
Suggested Citation: Suggested Citation