Commitment Decisions and Private Antitrust Enforcement: Searching for a Needed Convergence

Abstract

Commitment decisions constitute an increasingly central tool in the arsenal of antitrust public enforcement, in fact enabling the expeditious achievement of a result of optimal market functioning. On the other hand, by bringing about a closure of the administrative proceedings without a finding of infringement, butrather with only the imprimatur of bindingness to commitments that the companies involved propose to undertake, those decisions imply a deviation from the trajectory of complementarity between publicist and privateist instruments of competition law enforcement: the mobilization of civil law techniques, at the head of the remedial one, becomes in fact unrealistic, due to information asymmetries and related difficulties of proof that remain unmitigated. As, however, recourse to decisions with commitments is freed from the threshold of the minimum gravity of the alleged infringements, the acceptability of this state of affairs is gradually waning, and it is precisely in this light that a number of important interventions by the Court of Justice should be read, aimed at giving prominence, including in the courts, to commitment decisions and the preliminary findings preceding them