Relaxing whilst doing Competition Law is not an Oxymoron

Archive for February 18th, 2013

What I really meant (on recourse to commitment decisions)

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As I was exiting a plane on Friday night I received a bunch of email notifications about the comments that were being written to one of our posts (probably the most interesting public discussion over allegations of “scraping” so far; not the post, but the comments to it) in which “Bagnol” made a couple of attempts to clarify what it was that I really meant on my post and in a later comment thereto. At the same time, I read a post written by Nico that started with an idea that I must have thrown out at a conference on why the Commission resorts to commitment decisions, but with which I don’t feel identified (most likely it’s my fault for not having expressed it well).  Funnily enough, I couldn’t write any comments on what I really thought because I had committed to take a break from my blackberry (like certain companies I also break my commitments: I had to check my email hidden in an airport’s restroom; yeah, it was very glamorous..).

Anyway, let’s cut to the chase, and let me clarify my (not at all original) views on the increasing resort to negotiated solutions (for previous posts on this see, among others, here, here or here).

I have mixed feelings about the use of Article 9 decisions. On the one hand, I understand the Commission’s tendency to resort to them. Commitments enable authorities with limited resources to swiftly and effectively address certain practices (particularly in rapidly evolving markets, where a level-playing feel is needed, or when a fine does not appear to be adequate). On the other hand, given my whining-lawyer nature (and because of the little academic wannabe that some of us have inside) I sometimes also regret the lack of discussion and precedent inherent to such decisions. Now, is this new commitment-based enforcement paradigm positive or negative? There’s no clear answer. I guess that it all comes down to the role one atributes to the Commission: is it to put and end to anticompetitive conduct and to restore competition immediately through direct intervention, indirectly through precedent setting, or through a careful balance of both?

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Written by Alfonso Lamadrid

18 February 2013 at 8:58 pm