LEGAL PRACTICE: COMPETITION ENFORCEMENT - INFRINGEMENT - COMMITMENT PROCEDURE - REMEDIES - RISKS

The limits of commitments in antitrust cases: The risk of an immediate upside being offset by long-term adverse consequences

The commitment procedure can be very attractive for companies suspected of having infringed competition law, which conveniently avoid an in-depth investigation and a potential fine. From the competition authorities’ perspective, it also constitutes an effective procedural tool to swiftly remedy a situation that prima facie raises antitrust concerns. However, beyond appearances, commitments may, in the long run, be offset by adverse legal and practical consequences that are often relegated in the background. With this in mind, this article aims at bringing to light the potential legal risks and practical difficulties for companies which may result from the commitment procedure.

Introduction 1. For companies under an antitrust investigation, offering commitments in exchange to be let off the hook is naturally tempting given the immediate and obvious advantages of that expeditious procedure. The investigation is quickly closed without any findings of infringement or fines being levied against the company. In light of the exponential level of fines imposed in competition cases and the inherent uncertainty attached to presenting a full defense, electing to offer commitments to the French Competition Authority (“FCA”) comparatively appears a small price to pay. 2. This largely explains the success of the commitment procedure which, since its introduction in France in 2004, has been used in 62 cases, essentially in presence of a potential abusive conduct on the

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Mélanie Thill-Tayara, Marion Provost, The limits of commitments in antitrust cases: The risk of an immediate upside being offset by long-term adverse consequences, November 2019, Concurrences Review N° 4-2019, Art. N° 90991, www.concurrences.com

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