Best and even better practices in commitment procedures after Alrosa: The dangers of abandoning the “struggle for competition law”

Abstract

In the Alrosa case, the ECJ adjudicated on the degree of protection to be afforded to undertakings against disproportionate commitments in the procedure under Article 9 of Regulation (EC) 1/2003. The General Court required a substantially full proportionality review, because commitments are made binding on the undertakings by a unilateral Commission decision. In contrast, the ECJ largely dispensed with the review for proportionality, because commitments are voluntarily offered by the undertakings. The article discusses the hybrid character of commitment decisions between a purely unilateral command and a freely negotiated contract. It argues that the ECJ's Alrosa decision has removed practically all constraints on the Commission in the commitment procedure. This lack of constraints may result in a vicious circle, leading to ever more commitment decisions and ever fewer infringement decisions. Undertakings start to extrapolate their obligations from commitment decisions and guidelines that do not authoritatively state the law. This reliance on "quasi case law" increases the Commission's discretion in future negotiations. The incentives for the Commission to resort to the commitment procedure are especially strong in cases involving novel legal issues, in which the benefit of legal certainty provided by an infringement decision would be particularly large. There is a danger that the struggle for law is abandoned in favour of discretionary case-to-case negotiations. In order to avoid this development, one could either subject the commitment procedure to more demanding constraints or one could make infringement decisions relatively more attractive by allowing the Commission increased discretion in devising proactive remedies.