Between Enforcement and Regulation : A Study of the System of Case Resolution Mechanisms Used by the European Commission in the Enforcement of Articles 101 and 102 TFEU

This thesis examines the current design of the system of case resolution mechanisms used by the European Commission (the Commission) where an infringement of Articles 101 and 102 TFEU is suspected and advances some proposals regarding this design. Infringements of Articles 101 and 102 TFEU cause considerable damage to the EU economy and ultimately, to consumers. Despite intensified enforcement of Articles 101 and 102 TFEU and ever-growing fines imposed for such infringements, the Commission continues to discover new infringements, which indicates a widespread non-compliance with EU competition rules. This raises the question of whether the enforcement currently carried out by the Commission is suitable for achieving compliance with Articles 101 and 102 TFEU. The thesis is divided into four main parts: First, the objectives pursued by the system of case resolution mechanisms used by the Commission are identified. Second, taking stock, the case resolution mechanisms currently employed are assessed in the light of these objectives. Third, the question of whether and how the different case resolution mechanisms could be viewed through the lens of regulatory enforcement is considered. Fourth, an assessment is made as to whether a different approach to case resolution could be employed based on a prescriptive theory of regulatory enforcement, responsive regulation. The research conducted shows that the main objectives pursued by the system of case resolution mechanisms used by the Commission are: to bring infringements to an end, to punish and deter infringers, to prevent infringements and to clarify competition rules. These objectives shall be achieved in an effective and efficient manner. The case resolution mechanisms that are assessed are Article 7 decisions, Article 9 decisions and cartel settlements. These mechanisms pursue varying sets of objectives. Their fulfilment depends, on the one hand, on the legal and procedural modalities of each case resolution mechanism and, on the other, on the types of cases allocated to that case resolution mechanism. The assessment returns varied results showing that some objectives are difficult for the Commission to achieve. Moreover, the choices made by the Commission when allocating case resolution mechanisms to cases are sometimes counterproductive with regard to the fulfilment of the relevant objectives. Taking into account the different characteristics exhibited by the case resolution mechanisms, an attempt is made to categorise these mechanisms as pursuing different regulatory enforcement styles. The conclusion is that this is not fully possible, exposing the multi-faceted nature of the case resolution mechanisms currently at the Commission’s disposal. Finally, a potential design of a case resolution system based on the theory of responsive regulation is advanced. This design is specifically aimed at remedying some of the deficiencies identified in the current approach to resolving potential infringements of Articles 101 and 102 TFEU. Instead of choosing a case resolution mechanism on a case-by-case basis, a prescriptive system based on infringement history and the cooperation offered by the undertaking would determine what case resolution mechanism to employ. The aim of such case resolution mechanisms would be to reduce the focus on fines. Instead, focus would be placed on cooperation as a means of bringing infringements to an end and preventing infringements by way of corporate compliance programmes.