Article 9 Commitment Decisions: Some Comments on Key Questions in Light of the Recent Case Law of the CJEU

​​I. Introduction

Commitment decisions have proven to be a useful instrument since Article 9 of Regulation 1/2003²⁾²⁾Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. became applicable on the 1^st May 2004. They have been adopted in a number of cases by the European Commission and will probably gain importance in the future as companies and competition authorities realise the benefits of this procedure. Many Member States' competition regimes which have been aligned with Regulation 1/2003 now allow for commitment decisions to be taken by the relevant decision making authority.³⁾³⁾According to the ECN Working Group on Cooperation Issues: Results of the questionnaire on the reform of Member States' (MS) national competition laws after EC Regulation No. 1/2003 as of April 14, 2008, the national provisions allowing for commitment decisions to be adopted were fully aligned in Austria, Belgium, the Czech Republic, Germany, Denmark, Spain, Finland, France, Greece, Hungary, Ireland, Italy, Lithuania, Luxembourg, the Netherlands, Poland, Sweden, Slovenia, the Slovak Republic and the United Kingdom. In Latvia national Regulation was partially convergent; in Bulgaria, Portugal, Cyprus and Romania amendments were proposed or under consideration and only in Malta and Estonia was there no convergence at all. As has been pointed out by several authors, procedures under Article 9 provide considerable advantages in terms of cost cutting and the length of proceedings for both sides. They also benefit undertakings as no infringement is established and no prohibition decision is adopted.⁴⁾⁴⁾See W. P. J. Wils, Settlements in Antitrust Investigations: Commitment Decisions under Article 9 of Regulation No. 1/2003, World Competition Law, 29(3), (2006), P. 350; C. J. Cook, Commitment Decisions: The Law and Practice under Article 9, World Competition Law, 29(2), p. 212. Therefore, for the purpose of administrative efficiency and in the interest of the undertakings concerned commitment decisions should take priority over prohibition decisions. However, where the clarification of the law would contribute to the implementation of competition law, commitment procedures present significant disadvantages. Also with regard to deterrence and to the fact that fines lead at least to some extent to diminishing the illicit gains of cartels infringement procedures are to be preferred to commitment procedures.⁵⁾⁵⁾See supra 3, W. P. J. Wils, p. 350. Furthermore, from the undertaking's perspective, commitment procedures could lead to measures going beyond what the European Commission could have enforced within the framework of an Article 7 infringement procedure. Many "unanswered questions" have been raised as to the scope and the application of Article 9.⁶⁾⁶⁾R. Whish, Commitment Decisions under Article 9 of the EC Modernisation Regulation: some unanswered questions, in Liber Amicorum in Honour of Sven Norberg, (2006) Bruylant, Brussels, p. 555-572; M.S. Ferro, Committing to commitment decisions: unanswered questions on Article 9 decisions, European Competition Law Review, Vol. 26 (2005), issue 8, p. 451-459; G. Decocq, la semaine juridique enterprise et affaires n°42, 21 October 2010, Procédure d'engagements: porte ouverte à un droit de la concurrence negocié!, p. 1908. In case C-441/07 Alrosa,⁷⁾⁷⁾Judgment of the Court, 29th June 2010, C-441/07 , Commission of the European Communities v Alrosa Company Ltd. recently handed down by the Court of Justice of the European Union (CJEU) on the 29^th June 2010, some light has now been shed on how Article 9 is to be interpreted. However, many controversial issues remain and to some extent the judgment raises new questions. The following article identifies some key points of the Alrosa judgment and analyses the extent to which it has clarified some of the controversial questions with regard to commitment decisions as well as addresses some issues going beyond that judgment.