Chillin'Competition

For around 10 years (between 2004 and roughly 2014) the competition community spent countless hours discussing how commitment decisions could pursue stretched theories of harm and obtain remedies that went well beyond what would have been possible in standard infringement decisions. By the way, I gave an overview of all this in this 2014 presentation (Lamadrid- Overview of competition decisions).

Commitment decisions (after Alrosa) probably made us all think that intervention under competition law could reach where it had not reached before. The Commission was able to intervene very effectively in many markets with forward-looking, far-reaching remedies agreed by the parties. This improved the functioning of many markets and arguably reduced clarity in the law. We became accustomed to remedies that were not necessarily proportionate to the concerns triggering investigations.

In the past few years, however, recourse to commitment decisions has become relatively rare. A positive aspect of the new enforcement trend was that infringement decisions and subsequent Court judgments would provide greater clarity on the law. Perhaps we did not anticipate that greater clarity as to where real boundaries lie might also lead to frustration which, in turn, would propel calls to replace the law and bypass Courts, but that is another story (or is it?)

Coincidentally, as the use of commitment decisions started to decline, the debate completely shifted. We suddenly discussed less about the far-reaching scope of competition law, and more about the alleged insufficiency of competition law. There may not be causality, but there is certainly some correlation. [Btw, it’s amazing how the world, incluiding competition law, has changed in these past 6 years].

One of the main reasons that made Art. 9 commitments less popular is that they could not lead to the imposition of fines, let alone huge fines. But, contrary to what used to be the case, proponents of more aggressive antitrust enforcement now argue that large fines are meaningless and don’t do the job, and that it’s only remedies that matter. From this perspective, at least, perhaps commitment decisions did the trick after all?

Others, including myself, were not necessarily in favor of commitment decisions becoming the standard enforcement tool because that would lead to all actors operating in the shadow of the law, not really knowing what the real law was. Commitment decisions, however, were case-specific, evidence-based, preliminary assessments, followed existing procedures and entailed a somewhat “participative” process, including negotiations with the affected companies and market tests). The Commission was also very smart in using commitment decisions while ensuring legal certainty in parallel infringement decisions (see e.g. the Samsung and Motorola decisions on SEPs, or the Visa and Mastercard decisions on MIFs). One could argue that commitment decisions already addressed some of the concerns voiced out against the new tool under consideration (a single instrument combining the NCT and the ex ante regulatory instrument).

Some might also argue that commitment decisions were also too slow. But were they? It would be interesting to explore the reasons why some cases dragged on for longer, and whether that may have been related to external factors and third-party strategies.

It might also make sense to spend some time negotiating remedies in advance, rather than impose impractical remedies that might then need to be continuously reviewed and updated. As the Commission itself explained, “due to the more consensual mode of concluding the case, the commitment path may result in more efficient proceedings and more effective remedies; it allows for a more fine-tuned tailoring of the commitments and swifter implementation”. In a way, this was participatory antitrust avant la lettre.

Be that as it may, the welcome revival of interim measures should dispel or alleviate timing concerns. The recent Broadcom case is the perfect example.

The history of EU enforcement under Article 9 is, from the authority’s standpoint, an unquestionable story of success. It allowed for rapid, strong and far-reaching intervention subject to fewer constraints than in standard cases. By the Commission’s own admission, having companies give their views in the process also ensured that remedies were workable and reduced the risk of disproportionate / undesired outcomes. Perhaps commitments were not entirely satisfactory for anyone (authorities and rivals could want more, affected companies would want less) but that is probably why the tool resulted in an equilibrium that worked well. Commitment decisions did require the Commission to show that it could build a prima facie credible case (credible enough, at least, to force a company to make concessions to avoid the risks and harms that come with prolonged investigations), but that was not a problem, rather a safeguard to mitigate discretion.

Take a look again at the theories of harm pursued in Art. 9 cases and at the remedies that the Commission was able to obtain (summarized in slides 6-7 of the 2014 presentation). Does it feel like there was an enforcement gap? There also does not seem to be any dissatisfaction as to the outcomes that were secured by virtue of commitment decisions.

The Commission’s successful intervention in the Broadcom case shows that commitment decisions (combined with interim measures in the face of genuine risks of irreparable harm) could actually be the old new competition tool that many were looking for.  I guess sometimes we want new things, perhaps forgetting that what we already have might be even better.

[Disclosure: I have no professional interests in, and no detailed knowledge of, the Broadcom case. I do have clients that could be affected by the new digital enforcement tool under consideration (full disclosures are available in my posts on those, see notably here). Like practically all competition practitioners, I also have a very large number of clients that could be potential addresses of commitment and/or interim measures decisions].