Commitment decisions in EU competition law

Introduced into EU competition law by Article 9 of Regulation 1/2003, commitment decisions provide a settlement mechanism for Commission enforcement actions based upon concessions offered by defendant undertakings. The use of negotiated settlements is closely linked with the shift toward a more “regulatory” conception of competition law, however, and thus away from the orthodox antitrust paradigm. This article examines Commission practices to date under the commitment procedure, arguing that the enhanced flexibility and remedial choices available under Article 9 reflect characteristics more usually associated with the regulatory model. In view of the conventional criticisms of antitrust-as-regulation, the article furthermore considers the extent to which these regulatory attributes of the commitment procedure are problematic in practice, given that regulatory competition law does not incorporate the typical safeguards of ordinary regulation. The article concludes that, although the quasi-regulatory nature of commitment decisions is indisputable, its implications are more mixed. The increased effectiveness of Article 9, both as a means of alleviating market problems and of case disposition, must therefore be balanced against certain legitimacy and longer-term efficiency concerns.