Cartel Investigations and Commitments: Old Problems, Novel Solutions?

Across several recent cases, antitrust enforcers in Europe have demonstrated an increased willingness to consider novel solutions to close down investigations without finding any illegal behaviour or imposing penalties, but still being able to point to real wins to consumers from their interventions. This is another example of wider political factors coming into play in the work of competition authorities, with rapid delivery of clear benefits to consumers becoming a key focus of enforcement. The UK Competition and Markets Authority's ("CMA") recent decision to accept commitments from seven major housebuilders, including to make a £100 million ex gratia payment to help build affordable homes, coupled with significant compliance enhancements, is a particularly interesting example of this trend. The closure of the investigation via commitments deserves attention, especially from businesses either currently being scrutinised for cartel conduct or at risk of being so, who might wish to consider offering novel kinds of remedies to shut down investigations.

Housebuilders: Constructing Creative Commitments

The CMA's decision to accept binding commitments from seven major housebuilders is striking, following a market study into the house building sector and a subsequent cartel investigation into suspected exchanges of competitively sensitive information.

First, and foremost, without finding an infringement of competition law, the CMA required a £100 million ex gratia non-tax-deductible payment, which will fund public affordable housing programs. The CMA has highlighted the deterrence benefits of such a payment, even though the amount in question is far below the maximum penalty exposure in an infringement case, leading to questions of how the CMA has balanced the public interest in deterrence against the political pressure it is under to work quickly to deliver consumer benefits. The CEO of the CMA has emphasised how proceeding in this way allowed it to put "money back, directly and promptly, into…the government's affordable housing programme."

This follows a similar use of ex gratia contributions in a UK dominance case earlier in the year, underscoring the efforts of authorities to deploy creative elements within commitments that go some way to satisfying both deterrence objectives and align with wider public interest/authority objectives. On the other hand, where such decisions leave private actions for damages, an important part of the competition enforcement bigger picture, is less clear, given the distinct lack of detail provided by the CMA about the behaviour in question and the absence of infringement finding (see further below).

The CMA's willingness to explore practical solutions that allow cases to be closed quickly with funds directed towards consumers that have arguably suffered harm marks a dramatic change of approach, particularly in antitrust enforcement cases relating to alleged exchanges of information between competitors. One may also consider the pace at which the CMA can thus obtain a real change on the market, compared to a full and normally lengthy infringement procedure which leads to a fining decision and then potentially appeals which can take several years.

Second, the CMA accepted a five-year package that combines behavioural prohibitions, backed up by a thorough compliance architecture requiring the parties involved not only to put their own houses in order, but that of the entire sector notably by way of sector-wide guidance. In particular, the commitments:

• Impose a ban on sharing key categories of competitively sensitive information, in order to directly address the information exchange in question – therefore, while the CMA makes no finding of infringement, the risk of a repeat of the conduct at issue is dramatically reduced;
• A highly prescriptive compliance framework is imposed, notably involving the appointment of senior "commitment compliance officers" (not externally appointed monitoring trustees, but in-house roles), periodic communications sampling and review, annual compliance reports, and mandatory ongoing training; and
• The parties must support sector-wide guidance on information exchange. They have to do this relatively quickly (for the end of January 2026) in partnership with representative bodies for home builders across the United Kingdom. The guidance will be consistent with the commitments, in effect extending their scope across the sector by explaining about the prohibition on exchanging specified competitively sensitive information between housebuilders, as well as the safeguards required in such a context. The parties must provide monthly written updates to the CMA on the progress of the guidance until its publication, with a final update on the date the guidance is issued. The CMA views this guidance as helping raise wider industry awareness of the risks of exchanging competitively sensitive information, and the commitment to support it is a binding "best efforts" obligation.

Remedies in Cartel Investigations: A Delicate Balance

Given the specific circumstances of the housebuilders case it would be premature to see these commitments as precedent setting for future cartel cases. Nevertheless, the needle has clearly moved in the direction of bringing cases to a quick resolution where that can lead to improvements in compliance going forwards. Deterrence is still very likely to be considered as the primary objective when faced with the most hardcore or widespread anticompetitive practices. Nevertheless, parties involved in ongoing investigations may consider exploring the commitments option, which presents a number of advantages (and disadvantages).

Aside from the limited financial scope of the ex-gratia payment compared to a fine, another important aspect of this remedy package to note is that the housebuilders did not admit any liability or wrongdoing. Similarly, the CMA found no formal infringement. This has a direct impact on those who might consider themselves harmed by the behavior in question including homebuyers who possibly paid inflated prices. Any potential claimants can not bring follow-on damages actions where they could have relied on the CMA's infringement finding having to "only" go on and prove damage and causation. Rather, they will have to bring a "standalone" action, independently proving not only that the anti-competitive behaviour directly caused them harm but also that there was an underlying infringement causing this, which is a much more complex and costly process.

Whilst a remedy solution may offer some protection from damages claims for businesses under investigation, parties suggesting remedies must be cautious. Any claim by customers or competitors that remedies are not being complied with might result in an investigation and a penalty. The level of penalties which might be imposed in such a situation has recently increased to a fixed amount of 5% of turnover; or a daily rate of 5% of the daily turnover, or both a fixed and daily amount together. The CMA can also apply to court for an order enforcing the commitments if a party fails, without reasonable excuse, to adhere to them. Separately, if the CMA has reasonable grounds to suspect non-adherence (or a material change of circumstances, or that acceptance was based on incomplete, false or misleading information), it may reopen its investigation, reach an infringement decision, or give directions notwithstanding its acceptance of commitments. Even when parties comply with commitments, costs and risks remain such as paying for monitoring and ongoing compliance audits. In this case, the parties will need to move quickly to formulate the guidance, and this will require liaison with several stakeholders, including possibly a number of iterations.

One area coming out of this case which will be specifically interesting to watch, is how competition authorities across Europe now react to competition compliance programmes being used as a way of reducing fines or even avoiding them all together. The apparent willingness of the CMA to look forward and accept a compliance infrastructure being put in place as a solution to what it believes to be a competition law problem in the past, to the extent of not imposing any fines for past behaviour, potentially raises more questions than it answers:

• The CMA updated its penalty guidance in 2022 to remove having a compliance programme as being a mitigating factor when determining the level of fines (before then fine reductions of up to 10% for effective compliance programs were possible). For the CMA to now frame such a programme as a way not only of avoiding a fine entirely but also a finding of infringement, appears especially unusual.
• Looking across the channel, the Commission's long-standing position is that an effective compliance programme is the company's responsibility and its existence should not be rewarded after an infringement has already occurred. It remains to be seen whether the Commission is likely to be more pragmatic in that field, especially if national competition authorities follow the same path. In particular, in 2012, the French Competition Authority developed an engaged and proactive approach to support the development of competition compliance programs in France by offering a discount of up to 20% to companies proposing compliance remedies including through compliance programs. The French Authority finally opted for more consistency with the Commission's approach and it took down its policy on the occasion of a case in 2017 where it declined to accept compliance commitments. Nevertheless, the French Authority continues to develop guidance on compliance programs and can generally settle cases including on the basis of remedies offered by the parties, although so far it has not developed remedies like the ones seen in the UK housebuilders case.

Wider Trends Concerning Commitments

There have also been other developments of note in relation to commitments in competition investigations, which reflect the wider trend of trying to bring complex cases to a speedy resolution without years of court proceedings.

Most recently, the Commission has asked for feedback on commitments from a software company, in order to address alleged concerns relating to possible anticompetitive practices regarding maintenance and support services for business management software. This is a particularly interesting development in terms of the pace of antitrust investigations: the case was only formally opened in September 2025, and with commitments offered in November 2025, the commitments, if accepted, could offer a remarkably swift conclusion to the matter without any penalty being imposed.

Importantly, authorities are not only open to a broader range of commitments to close down cases, but they are also demonstrating pragmatism in adjusting commitments as markets evolve. The CMA's timely release of Google from Privacy Sandbox commitments, which was preceded by several adjustments over the past few years, points to a readiness to reassess remedy necessity and proportionality over time. Similarly, in the European Union, the Commission's report reflecting on the effectiveness of antitrust remedies in its cases over the past 20 years acknowledges the need to keep developing its approach in this area.

An increasingly pragmatic and more business-friendly approach can also be seen in the mergers sphere, where behavioural commitments are re-emerging as a credible pathway to clearance, particularly in complex or dynamic markets where structural divestments are impractical or disproportionate. The CMA's approach has visibly shifted over the past few months, with the authority now engaging more openly with investment pledges, pricing constraints, and monitored performance commitments. Most recently, the CMA's draft remedies guidance expressly tests expanding the use of behavioural solutions, and indicates a broader willingness to consider non-structural measures.

Similarly, while US antitrust enforcers have traditionally shown greater skepticism toward purely behavioural commitments, they are showing increasing openness to them to resolve competitive concerns. In January 2025, the Federal Trade Commission ("FTC") announced a settlement with a private equity firm following an investigation into its acquisitions in the anesthesia services industry. Rather than pursue an administrative trial, the FTC negotiated a consent order that froze the private equity firm's ownership and voting control in its wholly owned anesthesia services business, and limited the firm's governance rights to a single, non-chair board seat. The consent order also required the private equity firm to allow the anesthesia services business to terminate service contracts without penalty. More recently, the FTC agreed to behavioural commitments to resolve competitive concerns with the merger of media buying advertising agencies.

Key Takeaways: What Options Do Companies Involved in Cartel Investigations Have?

Creative commitments are becoming an increasingly important and varied feature of competition investigations. Although it is too early to say that the CMA's position in the housebuilders investigation sets a precedent for future cases, it does clearly reflect how authorities are favouring forward-looking remedies with robust compliance frameworks, sometimes supplemented by creative deterrent elements. For companies involved in cartel investigations and needing to know whether they should consider offering a package of remedies to an authority, key points to bear in mind include:

• Competition authorities in Europe have indicated that they are increasingly willing to explore novel solutions where consumer redress can be delivered quickly including in the kinds of cases not previously expected. Businesses should make the most of the opportunities this presents to resolve perceived competition concerns quickly and cost effectively, and seek to capitalise on the potential benefits which might flow from proactively and voluntarily approaching an authority with remedies that can be implemented rapidly. Nevertheless, competition authorities will not always be willing to entertain such suggestions especially in sectors where they wish to send an unambiguous message of deterrence. Large businesses involved in hardcore cartel arrangements should therefore not take for granted that they will be able to cut a similar deal as in the housebuilding case.
• Careful remedy design, disciplined implementation, and an eye to cross-border alignment are critical in investigations. Competition authorities will not be prepared to accept remedies which businesses fail to deliver in practice. Detailed consideration must be given to practical aspects of any remedy package offered so that implementation is secure.
• Whilst it would be a mistake to think that remedy offers are now being waved through (the detail in the housebuilder remedy package unpacked above show this is far from the case), there is now a growing body of past cases with businesses seeking comparatively faster paths to pragmatic resolutions than might have previously been the case. If this might come at the cost of sustained governance obligations and close regulatory oversight, there is undoubtedly more scope for discussions with authorities than before.

Mayer Brown's European Antitrust & Competition team comprises lawyers with a thorough knowledge of EU merger and antitrust laws as well as procedures. We have extensive experience of dealing with enforcers at the national and EU levels. Please reach out to us to discuss any of the issues summarised above in more detail.