Commitment Decisions and Private Enforcement of EU Competition Law: Friend or Foe?

Abstract

The entry into force of the Private Damages Directive might raise questions on the balance that should be struck between public and private enforcement of EU competition law. Although many aspects could be debated, this article will focus on the use of commitment decisions in Article 102 TFEU cases and their impact on the development of the private enforcement of EU competition law. Commitments have emerged as the preferred remedy in abuse of dominance cases. Whether this course of action has been appropriate or not remains to be seen. However, this practice has an indirect impact on the development of the private enforcement of EU competition law. In a damages action, the claimant faces different obstacles such as bearing the burden of proof of the infringement, the harm and the causal link between the illicit deed and the harm suffered. An infringement decision can be relied upon before the court in a damages claim. However, this is not applicable to a commitment decision. Against this background, this article explores the nexus between the increased use of commitment decisions in Article 102 TFEU cases and their effects on potential private damages actions. This article concludes that the European Commission seems to have mixed feelings about the private enforcement of EU competition law and that further steps should be taken towards a more stand-alone-oriented enforcement policy.