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Best and Even Better Practices in the European Commitment Procedure after Alrosa: The Dangers of Abandoning the ‘Struggle for Competition Law’

Florian Wagner-von Papp, 49 Common Market Law Review 929-970 (2012).

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Where the EU Commission has concerns about possibly anticompetitive conduct, Article 9 Regulation 1/2003 empowers the Commission to accept commitments from the undertakings concerned, provided that these commitments meet the concerns; if the Commission accepts the commitments, it makes them binding on the undertakings and concludes that there are ‘no longer grounds for action’ (the ‘commitment procedure’). This commitment procedure is part of a wider trend that promotes what one could call ‘consensual competition law enforcement’. The underlying problem of consensual competition law enforcement is that it departs from the traditional public-law paradigm of an authoritative top-down command in favour of a consensual dispute resolution mechanism. As a result, it is uncertain to what extent the traditional safeguards against such authoritative commands developed in public law – such as the principle of proportionality – continue to apply to this hybrid procedure; the ‘voluntary’ nature of commitments may instead suggest a hands-off approach.

In the Alrosa case, both the General Court and the Court of Justice of the European Union (CJEU) had the opportunity to adjudicate on the degree of protection to be afforded to the undertakings against disproportionate commitments. The General Court required a substantially full proportionality test. In contrast, Advocate General Kokott and the CJEU largely abandoned any proportionality review. After all, nobody forces undertakings to offer commitments to the Commission.

The article starts by outlining the hybrid nature of commitment decisions between the public and contract law paradigms (Part 2). Part 3 describes the Alrosa case and analyses its consequences for the judicial review of commitment decisions. Part 4 provides an account why reliance on the negotiations between the Commission and the undertaking to provide the right outcome is misplaced. Part 5 explains why the CJEU’s Alrosa decision removes practically all external constraints on the Commission’s discretion to extract commitments that go beyond what is necessary. Part 6 outlines the countervailing benefits of the commitment procedure. Part 7 discusses the danger of abandoning the ‘struggle for law’ by resorting to remedies negotiated on a case-by-case basis. Part 8 concludes.

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