"Settlements" and vertical restraints: "Good deal" or good law"?Click here to read the full article online
The European Commission wanted to fill a legal loophole by applying the "settlement" procedure to investigations of vertical restraints (and alleged abuses). However, the almost non-existent judicial review of the consequences of this procedure should be noted. There is a need to review the rules applicable to anti-competitive practices (in particular vertical restraints) in order to reconcile the imperatives of public enforcement of this type of competition restrictions with the fundamental rights of the parties to the procedure. Two important challenges are not satisfactorily addressed by the current rules on vertical restraints: are businessmen not tempted to accept the legal qualifications imposed by the Commission (otherwise questionable) in order to quickly put an end to a competition investigation and pay a limited fine while avoiding the risk inherent in a normal defence procedure based on full contradictory legal argumentation, which could nevertheless be reasonable and likely to succeed? In other words, trading off the rule of law against a short-term “good deal”? how is the general legal principle of effective judicial protection respected if the Commission’s decision-making practice is generalised to this "settllement/cooperation" procedure, encouraging companies to no longer defend themselves in law, but only to accept, for exclusively economic and commercial reasons, legal qualifications unilaterally imposed by the Commission?