Behavioural commitments: What are the risks?

Workshop organised by Concurrences review in partnership with Fréget Tasso de Panafieu.

Frédéric Jenny

The topic of behavioural commitments, and the associated risks, is likely to be approached from several angles. The issues raised by decisions involving behavioural commitments vary depending on whether these decisions are merger control decisions or contentious decisions involving anti-competitive practices. As regards contentious proceedings, it should be noted that while some decisions contain purely behavioural commitments, other decisions combine structural and behavioural commitments.

From the point of view of economic logic, the parties must determine the advantages and disadvantages of a commitment decision as compared to a contentious decision (the decision on behavioural commitments prohibits any appeal and can be costly to implement for the undertakings concerned; on the other hand, it often allows the avoidance or restriction of administrative penalties). The competition authorities, for their part, must decide whether or not to opt for commitments depending on the specific features of the case (sector, nature of the competition concerns, etc.).

When Regulation 1/2003 was adopted, it was understood that commitment decisions in contentious cases were to be reserved for cases which did not raise any new legal issues and did not require any innovation in the case law. Commitments are now also frequently used in sectors such as the digital economy, where the practices under scrutiny are new. The use of commitments is likely to respond to a need to intervene quickly in these very dynamic sectors (i.e. a logic of economic efficiency), although it does not always achieve this objective, as some recent cases (Google) demonstrate.

Photos © Léo-Paul Ridet

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  • Fréget & Associés (Paris)
  • French Competition Authority (Paris)
  • European Commission (Brussels)
  • ESSEC Business School (Cergy)