Volume 29 (2006) / Issue 2
Article 9 of Regulation 1/2003 introduced a new kind of settlement decision, by which companies’ commitments to the Commission are made legally binding. The commitment decision is a welcome addition to the range of possible resolutions of Article 81 and 82 EC investigations: in principle, settlement represents a cheaper and faster way of addressing the harmful effects of anticompetitive conduct. Notwithstanding its attractions for companies and regulators, however, in the nearly two years since Regulation 1/2003 has been in force the Commission has issued only two final commitment decisions. The process thus remains novel, and significant questions have not been addressed. This article summarises the procedural and substantive rules governing Article 9 commitment decisions and offers some reflections on practical issues that have arisen or seem likely to arise in connection with the new settlement process. On the procedural side, it relates practical experience with the main steps of the Article 9 process and highlights the process’s relative lack of procedural safeguards for companies. On the substantive side, it explains the legal effects of a commitment decision on the decision’s addressees, on third parties, and on national competition authorities and courts. In particular: it outlines the extent to which commitment decisions may be appealed; details how far an EC commitment decision will protect the addressees against future challenge of related conduct by third parties or national authorities; and explains why commitment decisions must be treated with caution since they may tend to create a false impression of setting forth definitive legal rules, which they cannot do.
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