Commitment Decisions in the EU and in the Member States: Functions and Risks of a New Instrument of Competition Law Enforcement within a Federal Enforcement Regime

Abstract

Commitment decisions are a relatively new instrument of competition law enforcement both in the EU and in the Member States. They provide a competition authority with a tool to handle certain complex competition cases quickly and flexibly where the parties are willing to cooperate. Yet, commitment decisions under article 9 of Reg. 1/03 have also raised important concerns, as they allow for a development of competition policies largely outside the realm of judicial review. Not much attention has been given to the spreading of similar instruments at the level of the Member States so far. This paper sets out to compare the commitment decision policies and practices in the EU and in the Member States. At a practical level, commitment decisions are used by NCAs predominantly either as a substitute for the former conditional exemptions under article 101(3) TFEU and/or to implement a policy clearly outlined by the EU Commission – whether by way of sector inquiries, infringement decisions or commitment decisions. The latter use is unobjectionable where the relevant legal issues have been clarified by the EU courts; yet, where this not the case, and the NCAs implement a policy developed by the Commission outside the scope of judicial review, the concerns raised against article 9-decisions are aggravated. The concerns regarding the use of commitment decisions could be mitigated if NCAs would systematically weigh the interests of administrative efficiency that may argue in their favor against the public interest in public censure, deterrence and the development of legal doctrine which should constrain the use of commitment decisions. In part, NCAs have indeed formulated policies that require them to do so. Also, commitment decisions are arguably subject to stricter forms of judicial review in some Member States. In the medium run, the decentralized experimentation with different commitment decision policies may hold important insights also for the EU Commission and the Union courts.