Enforcing compliance with competition law is not only a question of fining cartel members and making sure they pay up; it is also about penalising companies who obstruct investigations and don’t comply with decisions.

As to cartels, the EC Commission can’t really be faulted. It is just a shame that the same companies seem to get caught again and again. This suggests either that the penalties are too low or that the companies concerned just can’t help themselves and would do it again however much they were fined. It may be that there is a systemic problem beyond the EC Commission’s ability to remedy.

As for penalising obstructive firms, the EC Commission again cannot be faulted as it showed when it recently fined the utility company E.ON for interfering with an investigation.
On enforcement of decisions, the EC Commission is also now prepared to follow through by imposing a fine of 899 million ECU on Microsoft for non-compliance with the decision of March 2004, in which it was supposed to charge a reasonable price for access to interface documentation. Non-compliance consisted of charging way too much – whatever that might mean.

As the EC Commission proclaimed, this is indeed a “first” in competition law, but this won’t be the end and the road may get very rocky indeed from now on. For almost its whole existence, the EC Commission Competition department has sought to avoid becoming a regulator of prices charged by dominant companies. The EC Commission became a regulator in effect when it reduced ‘roaming’ fees charged by telecom companies but this was by legislation and not by regulatory intervention which is freer from democratic accountability.

Maybe remedies for market abuses in high technology markets requires what amounts to price control, but the issues raised by this decision range rather wider than competition law enforcement. Expect the constitutional issues now to be raised rather more vocally now than in the past.