Commitment decisions under Art. 9 of Regulation 1/2003: the developing EC practice and case law

The so-called “commitment decision” procedure, introduced into European competition law with Art. 9 of Regulation 1/2003, was meant to provide the Commission with the possibility to dispose of competition law cases by way of a kind of formal settlement, roughly analogous to the US consent decree. It has quickly become an important instrument of European competition law enforcement. Since May 2004, roughly 50 % of all Commission decisions applying Art. 81 or Art. 82 in non-hardcore-cartel cases have been taken under Art. 9 of Reg. 1/2003. However, the CFI’s Alrosa judgment of 11 July 2007 calls into question the Commission’s commitment decision practice in various respects. Alrosa does not conceive commitment decisions as “settlements” proper, but treats them as public law enforcement largely analogous to infringement decisions under Art. 7 of Reg. 1/2003. It emphasizes the Commission’s duty to investigate and clearly formulate the competitive concern, insists on a full judicial review of the proportionality of the commitments and underlines the full judicial protection of the concerned undertakings’ procedural rights, namely the right to access to the file and the right to be heard. This paper provides an overview of the Commission’s commitment decision practice since Art. 9 of Reg. 1/2003 has entered into force, discusses the concerns that this practice has raised and the implications of the Alrosa judgment, should it be upheld by the ECJ. According to the author, the Alrosa judgment fundamentally re-conceptualizes the function and structure of commitment decision procedures, with likely repercussions on analogous provisions in national competition laws. It creates important safeguards against the real risk that the Commission’s incentives to settle cases may diverge from the public interest in effective protection of competition.