Commitment decisions and private antitrust enforcement

This article provides a critical overview on the interaction between private antitrust enforcement and commitment decisions. Over the last few years there has been a significant use of commitment decisions, especially in Italy, to solve competition concerns in numerous cases, with the sole exclusion of hard core restrictions. The use of this type of decisions makes private antitrust enforcement more difficult, as without a formal finding of an infringement recovery of damages may be more burdensome and difficult for injured parties: this raises the issue of the probatory value of commitment decisions. In this respect, some recent case law provides indications on the private enforceability of decisions accepting commitments from parties in national courts. Other evidence that may be used in civil actions may also be obtained through access to the file. In the authors' opinion, the issues discussed are particularly relevant in light of the growing interest in Italy and in Europe for a more effective private enforcement as an additional tool to enhance protection of competition.