Edited by Björn Lundqvist and Michal S. Gal
Chapter 10: Consent-based case resolution
The European Commission, when deciding how to resolve an infringement of Articles 101 or 102 TFEU, increasingly chooses to resolve these cases in a consensual manner. This raises the question when the Commission should choose a prohibition decision over a consensual case resolution, using cases from the digital economy as an example. The chapter first introduces the different case resolution mechanisms and considers their advantages and disadvantages. Second, it discusses factors that must be considered when deciding what case resolution to utilize. It argues that three criteria should be considered: (1) the availability of the case resolution mechanism for the type of infringement and the willingness of the undertaking in question to engage in a consensual solution; (2) the remedies that can be achieved; and (3) the novelty of the infringement. To illustrate the application of these criteria, cases regarding territorial restraints, self-preferencing and MFN clauses are assessed.
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