Commitment Decisions in EU Competition Enforcement: Policy Effectiveness v. the Formal Rule of Law

Marking the fifteenth anniversary of the entry into force of Regulation 1/2003, 2019 offers a vantage point from which to analyse the rise of commitment decisions as the primary enforcement mechanism for non-cartel competition law investigations at EU level. Commitment decisions, the closure of competition cases with a package of remedial obligations in response to Commission concerns, have an undeniable administrative appeal. They afford the Commission the absolute discretion to counteract any form of market conduct, whether beyond the pre-existing scope of the law deduced by the EU Courts from Articles 101 and 102 TFEU, or below exacting thresholds for prohibition of legally controversial business practices. Furthermore, the Commission can secure any remedial outcome, even if disproportionate or seemingly disconnected from its competitive concerns, to thereby redraw markets according to its idealized vision. In this regard, commitment decisions allow the Commission to achieve its policy goals with utmost effectiveness. Nevertheless, this article argues that such a method of market intervention represents a significant divergence from realizing the ideal of the formal rule of law in EU competition enforcement: normative certainty for businesses, facilitated by the equal application of generalized legal norms, which are subject to close oversight by courts. This offers an aspirational legal form of considerable political and economic value. Using commitment decisions to enforce EU competition policy via ad hoc, subject-specific decision making, conditional upon unforeseeable remedial obligations, is of systemic detriment to the legal comprehensibility of not just future Commission decision making, but the entire edifice of norms deduced from the Treaties by the EU Courts in this field. A rather relaxed approach to judicially reviewing the remedial proportionality of commitment decisions has partly contributed to this issue. However it is suggested that the EU Courts are largely unable to remedy the problems of novel theories of harm or subject-specific determinations, delivering upon their important residual role envisaged by the rule of law ideal, because of a factor mostly beyond their control: the lack of commitment decisions brought before them for review. To that end, the article concludes by recommending the automatic review of commitment decisions by the Courts. This would hopefully foster a more balanced reconciliation of effective policy achievement by the Commission and realization of the formal rule of law ideal in contemporary EU competition enforcement.