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Alternative enforcement techniques
By Jean-François Bellis on 27 May 2008
Categories:
"The second part of the conference will deal with alternative enforcement techniques used by the Commission in competition cases. Essentially, three types of alternative enforcement mechanisms will be discussed:
1) settlements: the Commission will soon introduce a new procedure in cartel cases under which undertakings suspected of participating in a cartel will be able to have a discussion with the Commission about the level of fines which they are prepared to accept in the context of a simplified procedure. This will allow the Commission to deal with cartel cases more quickly. The benefit for the undertakings concerned is that they will be able to address the level of the fine, thus reducing the uncertainty about that issue in cartel cases;
2) commitments: under Regulation 1/2003, undertakings can offer commitments to do certain things or refrain from doing certain things in the future. The Commission can accept such commitments in a decision which does not imply any finding of infringement and cannot impose any fine. A fine can only be imposed in case the commitments are violated. This procedure has been used in a few cases. The 2007 judgment of the CFI in the Alrosa case may make it more difficult for the Commission to use this procedure extensively in the future;
3) other techniques: in addition to proceedings leading to decisions, the Commission may also rely on other enforcement techniques such as sector inquiries (as illustrated by the pending sector nquiry concerning the pharmaceutical sector), guidelines (in which the Commission explains how certain practices should be approached from a competition law viewpoint) and guidance letters (up to now never used).
The conference will discuss the pros and cons of these various alternative enforcement techniques. One of the issues that will be debated is wheter they have a negative impact on the undertakings' rights of defence or whether they constitute a sensible solution to some of the problems raised by the traditional enforcement techniques.