The Commission has a lot more in its toolbox than fines to enforce Articles 101 and 102 TFEU. The dissertation analyses non-criminal sanctions, referred to as remedies, of which access obligations, price caps or even the break up of a company constitute but a few examples.
Letzte Änderung: 07.10.15
The work analyses remedies that may be adopted by the Commission on the basis of Articles 7 and 9 Regulation 1/03. Broadly speaking, such remedies constitute measures by which a firm that is found or suspected to violate Articles 101 or 102 TFEU can be obliged to act in a way that puts the infringement to an end. Such remedies can for instance consist of a simple obligation to cease and desist anticompetitive conduct, of an obligation to grant access, an obligation to respect a certain minimum or maximum price, or of an obligation to break up a company. While Article 7 empowers the Commission to impose injunctions against the will of the concerned undertaking subsequent to the finding of an infringement, Article 9 provides the Commission with the opportunity to make binding commitments that are offered by the concerned undertakings with a view to eliminate the Commission’s concerns.
The interest pursued by the study is twofold. Primarily, it assesses whether the criticism that is levelled in the literature at the Commission’s use of the Article 9 procedure is justified. In a nutshell, this criticism posits that the Commission’s frequent recourse to Article 9 instead of Article 7 leads to overbroad remedies, undermines procedural safeguards and reduces legal certainty. In order to assess the pertinence of the criticism, the present work uses Article 7 as a normative benchmark. It examines, on the one hand, whether and to what extent the Commission’s commitment practice is inconsistent with the standards of Article 7 decisions in terms of scope of the remedy, procedural safeguards, and legal certainty. On the other hand, it asks whether and to what extent inconsistencies can be justified with the two particularities that distinguish the Article 9 from the Article 7 procedure: The goal of procedural economy that underlies commitment decisions and their consensual nature. Using Article 7 as a normative benchmark for the Commission’s commitment practice presupposes a clarification of the standards that apply under this provision. This clarification is hence the secondary objective of the present work.
The gist of the thesis submitted is that most of the criticism of the Commission’s use of commitment decisions is not justified. There is in principle no need for reform. Critics tend to overstate the degree to which the Commission’s commitment practice lags behind the standards of infringement decisions by emphasising both the rigour of the Article 7 procedure and the laxness of the Article 9 procedure. The present work relativises these emphases. It underlines the amount of flexibility enjoyed by the Commission in Article 7 procedures and the existence of limitations in Article 9 procedures. The remaining inconsistencies between the Commission’s commitment practice and the standards for Article 7 decisions can, it is submitted, be justified with the consensual nature of commitment decisions and their underlying goal of procedural economy. This conclusion applies all the more in view of the broadly accepted need for some sort of consensual mechanism to close antitrust investigations and in view of the lack of convincing proposals to improve the current legal framework for the adoption of remedies.
Korbinian Reiter
Dr. Mark-Oliver Mackenrodt
Prof. Dr. Thomas Ackermann
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