EU Competition Investigation Into Credit Default Swaps: The End In Sight?

In what could be the last step before closing its investigation into credit default swaps (CDS), the European Commission has announced that it is market testing commitments offered by the International Swaps and Derivatives Association Inc. (ISDA) and Markit to address preliminary competition concerns.  The commitments were published on 29 April 2016 in the Official Journal. 

If the results of the market test are positive, the European Commission could make the commitments legally binding by decision under Article 9 of Regulation 1/2003.  This would result in the closing of the investigation, without the European Commission concluding to - nor the parties recognizing- an infringement of EU competition rules.  Article 9 decisions have become by far the preferred route (instead of prohibition decisions) for closing investigations where non-cartel competition concerns under Articles 101 or 102 TFEU have been identified.