The Impact of Commitments on Legal Certainty

Abstract

The criticism that the recourse to Article 9 instead of Article 7 has a negative impact on legal certainty has several facets. The most important aspect is certainly that commitment decisions are de facto only scarcely appealed. Critics stress above all that the use of commitments reduces the likeliness that a judicial precedent is created which contributes to the clarification of the law. However, there are also other issues that raise commentators’ concerns: The absence of clear criteria when the commitment procedure applies; the lack of a right of the concerned undertaking to a commitment decision; the room left by Article 9 to the Commission’s power to prioritise cases; and the effects of commitment decisions on the practice of the competition authorities and courts of the Member States. The present chapter will organise the assessment of the mentioned aspects in a first section that deals with the disadvantages of the Article 9 procedure in terms of legal certainty. The second section will then place an emphasis on an advantage of the adoption of a commitment decision in terms of legal certainty that, it is submitted, has to date been paid too little attention: The fact that a commitment results in precise and enforceable obligations.