Settling or Learning: Commitment Decisions as a Competition Enforcement Paradigm

Abstract

'Revolutions do not follow precedents nor furnish thern' O. W Holmes' An increasingly important aspect of EU cornperition enforcement since the irnplernentation of the modernization package has been the Cornmission's use of a procedure for resolving cases without finding a violation based on remedia! cornmirrnents offered by the undertakings. Similar non-adversaria! tools have been used by nacional competition aurhorities and in other regulatory fields. Their common characrerization as sertlement procedures for the negotiated dosure of cases has fuelled concerns about possible overuse to reorganize markers and contractual relationships. This is particularly so given that cornmitments are relatively opaque, afford limited judicial review and have been used in cases where existing rules and precedents do not clearly point to a violation. The artide argues that rhe settlement view may nor sufficiencly capture either rhe design or the porential of the cornrnitmenrs procedure as a policylearning device in cases where there is doubt about the nature and graviry of competition concerns in unfamiliar and changing market environrnents. In light of rhe transformation rowards an effecrs-based EU cornpetirion law, cornmitment-based decisions may not be a second-besr alrernative, but rhe preferred and sometimes only mode of enforcement. Given rhe now overwhelming concerns abour the legirimate use of this insrrument, the article discusses how exisring mechanisms could supply accountabiliry without sapping the advantages of commitrments as a policylearning device, including an alrernarive role for judicial review.