A ‘Tunney Act for Europe’? Settlement and the Re-Judicialisation of European Commission Competition Enforcement

Abstract

• The use of settlement mechanisms, administered under both Arts.7 and 9 of Regulation 1/2003, has become one of the most common features of European Commission enforcement activity in recent years. • While settlement in itself is unproblematic, one notable result has been a ‘de-judicialisation’ of EU-level enforcement, whereby such cases are shielded from subsequent review by the Union Courts. This has two potential downsides: a precedent problem, and a legitimacy problem. • In order to address these concerns while continuing to reap some of the benefits of settlement, this article proposes to give the Court of Justice a greater role in overseeing the Commission’s settlement practice, through a judicial pre-approval procedure that might be described as a ‘Tunney Act for Europe’. While EU competition enforcement has seen many changes since enactment of Regulation 1/2003, perhaps the most wide-ranging has been the wholesale embracing of settlement within the European...