The European Commission’s Practice Under Article 9 Regulation 1/2003: A Commitment a Day Keeps the Court Away?

Paul Lugard, Martin Mollmann, Apr 01, 2013

No less than three recent high profile cases have put the EU antitrust commitment procedure in the spotlights. First, while the U.S. Federal Trade Commission (“FTC”) recently announced that it had terminated its investigation into Google’s services regarding search engines and web advertising, the EU Commission’s parallel attempts to reach an agreement with Google on similar commitments have been ongoing for about a year and are expected not to be finalized before Autumn 2013. Second, on March 6, 2013 the Commission imposed a EUR 561 million (U.S.$794 million) fine on Microsoft for having breached its 2009 “choice screen” commitment intended to offer consumers a choice of web browsers. Finally, on March 13, 2013, the Commission published in the Official Journal the text of the December 2012 commitment decision regarding the e-Books investigation involving Apple and four publishers. These three matters underscore the importance of the EU commitment procedure, and the controversies surrounding the use of this EU-style consent decree procedure.

As with all good things in life, the commitments procedure should be used with moderation to avoid indigestion. Although the commitment procedure was only introduced in 2004 in EU antitrust proceedings as a means to rapidly resolve cases, it has over the past years become a cornerstone of the Commission’s antitrust policy. Such success was not foreseen. In fact, when the Article 9 of Regulation 1/200…

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