Abstract

An increasingly important aspect of EU competition enforcement since the implementation of the

modernization package has been the Commission’s use of a procedure for resolving cases without
finding a violation based on remedial commitments offered by the undertakings. Similar non-
adversarial tools have been used by national competition authorities and in other regulatory
fields. Their common characterization as settlement procedures for the negotiated closure of cases
has fuelled concerns about possible overuse to reorganize markets and contractual relationships.
This is particularly so given that commitments are relatively opaque, afford limited judicial
review and have been used in cases where existing rules and precedents do not clearly point to a
violation. The article argues that the settlement view may not sufficiently capture either the
design or the potential of the commitments procedure as a policy-learning device in cases where
there is doubt about the nature and gravity of competition concerns in unfamiliar and changing
market environments. In light of the transformation towards an effects-based EU competition
law, commitment-based decisions may not be a second-best alternative, but the preferred and
sometimes only mode of enforcement. Given the now overwhelming concerns about the
legitimate use of this instrument, the article discusses how existing mechanisms could supply
accountability without sapping the advantages of commitments as a policy-learning device,
including an alternative role for judicial review.