Chillin'Competition

A Microsoft-related post to compensate for the disappearance of the post uploaded earlier.

Recital 13 of Regulation 1/2003 provides that:

“Commitment decisions are not appropriate in cases where the Commission intends to impose a fine“. The ratio of this rule has to do with the fact that commitments only have corrective effects for the future.  Unlike fines, they fail entirely to punish past anticompetitive conduct – behavior that  has actually caused harmful effects – and are thus inappropriate in case of lasting competition law infringement.

Think of Microsoft II where the Commission accepted commitments. Take a breath. Now think of Microsoft I: same type of alleged anticompetitive conduct, same company, but in this case a staggering 497 million € fine (for two infringements though). My question: can in such situations the Commission’s discretion over the outcome of a case be challenged on grounds of unlawful discrimination? Although I doubt it, I find the point  quite interesting (I allude to it in my last concurrences paper).