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 1/2003 was introduced, a prominent former EU Commission official expected the commitment procedure to remain an exceptional, alternative enforcement instrument in the Commission’s toolbox.
While the Commission already had the means to informally settle antitrust investigations prior to the adoption of Regulation 1/2003, Article 9 provided it with a clearer legislative framework and, importantly, clarified the rights of third parties.
It is sometimes argued that the commitment procedure of Article 9 has been inspired by a long standing U.S. procedure which allows the Department of Justice (“DOJ”) and the FTC to settle investigations by “consent decrees” (DOJ) or “consent orders” (FTC). These instruments are used in the vast majority of proceedings and allow the agencies to close a case on the basis of agreed concessions. One important difference with the EU system is, however, that DOJ decrees are reviewed by courts to determine whether the decree is in the public interest. Also, contrary to the EU system, U.S. negotiated settlements may include fines imposed on companies.
The frequent use of the EU commitment procedure supports the idea that the EU and the U.S. systems are converging. The frequency of negotiated outcomes on both sides of the Atlantic leads to similar questions, in particular with respect to the desired level of legal certainty and guidance, as well as the role and interests of third parties.
An antitrust enforcement system based solely on infringement procedures without any room for negotiated outcomes would undoubtedly be inefficient and inappropriate. But the question is whether the extensive use by the Commission of this new enforcement tool and the (partly self-inflicted) marginalization of the European Court of Justice (“ECJ”) in this area have not overshadowed the need to establish a balance between enforcement efficiencies on the one hand, and imperatives of legal certainty, due process, and non-discrimination on the other.