A Search for Appropriate Judicial Scrutiny - An analysis of the implications of the jurisprudence laid down by the CJEU regarding third party challenges to commitment decisions

Sammanfattning: As of 2004, with the entry into force of Regulation 1/2003, the Commission has been granted a possibility to substitute its infringement procedure in competition law enforcement, for a simplified commitment procedure. The major difference lies in that instead of having to conduct a thorough investigation into the behaviour of one or more undertakings, and follow this investigation with a finding of infringement of Article 101 or 102 TFEU and a possible fine, the Commission can now accept commitments from undertakings addressing its competition concerns. The Commission must only conduct a preliminary investigation, concluding that it intends to adopt an infringement decision in order for this option to become available, in accordance with Article 9 of the regulation. This essay aims to investigate the positive and negative aspects of the commitment procedure. A further aim is to analyse the possibilities for a third party of challenging a commitment decision. This possibility brings with it several positive outcomes as well as many possible detriments. On the positive side are aspects such as a greater efficiency in competition enforcement and a more effective use of the Commission’s resources – the Commission being the main enforcer of EU competition law. Another positive outcome is that this development was at large a codification something that was already occurring, however previously without any possibility of actually enforcing the offered commitments. The negative impacts of the procedure include a decline in legal certainty, and a lack of consideration for the interests of third parties, consumers as well as the public interest. Concerns have also been expressed regarding the possibility for the Commission to use the procedure as a way of regulating specific markets, and taking the adjudication on novel legal issues into its own hands. 1 Especially after the CJEU developing some jurisprudence there are concerns relating to an overuse of the procedure, and that the procedure will be used as a loophole for the Commission in order to escape judicial review. In cases Commission v Alrosa and Morningstar v Commission, the CJEU has granted the Commission a vast degree of discretion as to what commitments it may accept, limiting its own scope for judicial review drastically compared to in infringement decisions. The two rulings are the only cases where the EU Courts have ruled on the validity of a commitment decision, and in both cases the appeal before the Court came from a third party applicant. Research shows that an undertaking subject to a commitment decision has never brought an action for appeal. In Alrosa the applicant, with the same name, was a business partner to the undertaking which has offered commitments to the Commission. Alrosa considered the commitments to be disproportionate in that they were too onerous. In Morningstar the applicant was a competitor of the view that the commitments were not enough to address the competition concerns expressed by the Commission. Both cases were ruled in favour of the Commission, and in my opinion the message is quite clear: the current legal situation does not seem to provide third parties with any real possibilities of challenging commitment decisions. As it seems third parties are the only actual parties currently submitting appeals to commitment decision, the limiting of their doing so may mean limiting the real possibility for judicial review of commitment decisions. The current legal situation does in my view not offer an appropriate level of judicial scrutiny of commitment decisions.