The Transactionalization of EU Competition Law: A Positive Development?

Abstract

Over the last few years, a growing number of competition law investigations launched by the Commission end with the adoption of a commitments or, in the case of cartels, settlement decision. The success of these procedures is explained by the benefits they bring to both the Commission and the investigated undertakings. These procedures allow the Commission to save resources and obtain results quickly, while they allow undertakings to avoid the imposition of a fine (in the case commitments) or a decrease of the fine (in the case of settlements), as well as end the distraction created by investigation and control the damage to their reputation. This paper argues that excessive reliance on these procedures may have some downsides in that they may be poorly suited to deal with cases involving complex and novel questions of competition law. Moreover, in the case of commitments, there is a danger that this procedure by the Commission be used to extract remedies that it may not be able to include in an infringement decision subject to judicial review. As these procedures generate few appeals, there is also a danger that these procedures undermine the evolution of the case-law.

Keywords: competition law, commitments, settlements, cartels, remedies, judicial review, procedural

JEL Classification: K21, K42, L41, L42