In this seminar I want to juxtapose informal methods by which competition authorities solve cases (using the example of commitment decisions) and consider how far the analysis of this enforcement style may be assisted by reference to the literature on ‘responsive regulation’. The judgment and the paper by Wagner von Papp will get you started on the legal issues, which we will map out first. The chapter by Ayres & Braithwaite is taken from their seminal book, which has been influential in academic and policy circles. The last paper raises some questions.
Case C-441/07 P Alrosa  ECR I-5949
F. Wagner von Papp ‘Best and Even better Practices in Commitment Procedures after Alrosa: the Danges of Abandoning the “Struggle for Competition Law”‘ (2012) 49 Common Market Law Review 966
Ayres and Braithwaite Responsive Regulation (OUP, 1992) chapter 2 (will be distributed)
Parker ‘The ‘‘Compliance’’ Trap: The Moral Message in Responsive Regulatory Enforcement’ (2006) 40(3) Law and Society Review 591
Points for Discussion
Is Alrosa wrongly decided? shoudl there be tighter controls on commitment decisions? If so how would you design such controls?
what are the methods by which Ayres and Braithwaite argue in favour of responsive regulation? (and conversely how do their methods disprove the validity of other regulatory tools)
Can commitment decisions be subsumed within the framework of Ayres and Braithwaite’s responsive regulation theory?
Is it possible to design an enforcement pyramid and a pyramid of enforcement strategies in the framework of competition law? How would it look?
what are the risks of adopting responsive regulation?