European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The undertakings concerned may freely offer commitments to do or not to do some action to meet the specific features of the market on which they operate, such as commitments to keep separate accounting records , transfer a part of their assets , postpone implementation of the agreement , waive the claim to a right , refrain from granting cross-subsidies  or tying-in sales , or not to discriminate  …

Commitments/Conditions and obligations

The undertakings concerned may freely offer commitments to do or not to do some action to meet the specific features of the market on which they operate, such as commitments to keep separate accounting records , transfer a part of their assets , postpone implementation of the agreement , waive the claim to a right , refrain from granting cross-subsidies  or tying-in sales , or not to discriminate in respect of third parties to the agreement .

A breach of the commitments made in return for the exemption of an agreement only leads to the withdrawal of the exemption if, from the point of view of the overall achievement of the objects of the commitments, it is a clear and serious breach that has had serious and material adverse effects and resulted in irreparable and serious damage to a third party or if there have been several breaches demonstrating a persistent failure to comply properly .

The Commission sometimes  makes exemptions subject to conditions and obligations , requiring the beneficiary of the exemption to do or not to do some action (transferring of assets , allowing access to infrastructures , postponement of implementation of the agreement , confidentiality obligations , limiting the extent of cooperation , pricing policies , etc.), or may confer on the Commission the possibility of continuous supervision of the exempt agreement through obligations to provide information and submit to control . The Commission has a discretion in this area and has the power to attach obligations to its decisions rather than conditions . It may also modify or withdraw a decision if the beneficiaries abuse the exemption , or if they request its cancellation .

Commission Decision No 96/547/EC of 17 July 1996, Phoenix/GlobalOne, LawLex200500004764JBJ.

Commission Decision No 1999/695/EC of 15 September 1999, REIMS II, LawLex200400002625JBJ: the obligation to postpone the date of implementation of the agreement between postal operators on levels of terminal dues may be attached to the exemption. 

Commission Decision No 96/546/EC of 17 July 1996, Atlas, LawLex200500004762JBJ.

Commission Decision No 94/594/EC of 27 July 1994, ACI, LawLex200500005362JBJ; No 97/780/EC of 29 October 1997, Unisource, LawLex200400002552JBJ: the agreement to create a joint venture which involves the building a network of trans-European telecommunications does not eliminate competition when it includes terms to allow competitors to interconnect to the networks it, or its members, use; No 1999/781/EC of 15 September 1999, British Interactive Broadcasting/Open, LawLex200500005276JBJ: the exemption for a joint business agreement, whose object is to provide consumers with a new interactive digital television service, may be subject to the commitment to grant third parties access to digital terminals subsidized by one of the founding undertakings under the same conditions; No 2002/746/EC of 5 July 2002, AuA/Lufthansa, LawLex200200003467JBJ; Case T-289/01 Duales System Deutschland v Commission [2007] ECR II-1691, LawLex200700001494JBJ: the exemption decision, by which an undertaking, operating the first collective national packaging collection and recovery system, must allow the use of collection facilities of its contractual partners by competing exemption systems, is justified due to the need to avoid any elimination of competition on the market. 

Commission Decision No 86/405/EEC of 14 July 1986, Optical fibres, LawLex200500004441JBJ; No 94/296/EC of 29 April 1994, Stichting Baksteen, LawLex200500004786JBJ; No 97/780/EC of 29 October 1997, Unisource, LawLex200400002552JBJ: the exemption for the cooperation of telecommunications operators within a joint venture may be accompanied by commitments not to engage in mutual exchanges of confidential information relating to customers, e.g. on prices.

Commission Decision No 93/49/EEC of 23 December 1992, Ford Volkswagen, LawLex200500004813JBJ: obligation to differentiate products; No 2000/182/EC of 14 September 1999, GEAE/P & W, LawLex200400002581JBJ: obligation to limit the application of the product developed in common.

Commission Decision No 93/174/EEC of 24 February 1993, Tariff structures in the combined transport of goods, LawLex200500004821JBJ: an exemption for an agreement between railway companies on a common tariff structure for combined international transport, accompanied by a price agreement on incidental costs, may be subject to the obligation to ensure the preservation of different national tariff structures and not to discriminate or collude on tariffs levels.

Commission Decision No 75/73/EEC of 13 December 1974, Bayerische Motoren Werke AG, LawLex200700001839JBJ: obligation for an annual submission of reports on the relations between supplier and existing or potential distributors; No 77/160/EEC of 20 January 1977, Vacuum Interrupters Ltd, LawLex200400002392JBJ, obligation to indicate any change in the capital and/or the ownership of shares of the joint subsidiary; No 91/128/EEC of 15 February 1991, Sippa, LawLex200400002460JBJ; No 91/562/EEC of 18 October 1991, Eirpage, LawLex200400002469JBJ; No 92/33/EEC of 16 December 1991, Yves Saint Laurent Parfums, LawLex200500005352JBJ: obligation to submit to the Commission detailed reports every two years showing the amount of minimum number of purchases set every year, the total amount of purchases of its products achieved over the past year by all approved points of sale, all tariff increases, the launch of new products or withdrawal of old products from the market and the number of approved points of sale; No 93/174/EEC of 24 February 1993, Tariff structures in the combined transport of goods, LawLex200500004821JBJ: obligation to send to operators and the Commission the list of incidental costs involved and to consult, in advance and with a year's notice, operators' representatives before changing the tariff structure; No 94/322/EC of 18 May 1994, Exxon/Shell, LawLex200500004787JBJ: obligation to give prior notice to the Commission of any renewal, extension in scope or nature, or modification of/addition to agreements and any stoppage of the joint undertaking's production, specifying the duration and the reasons for such stoppage; No 96/546/EC of 17 July 1996, Atlas, LawLex200500004762JBJ and No 96/547/EC of 17 July 1996, Phoenix/GlobalOne, LawLex200500004764JBJ: obligation to make available to the Commission every 12 months a report of accounts checked by an independent external auditor, to retain the archives thereof, to allow their examination by the Commission during business hours on the premises of the company, and to provide all the documents and other information necessary for these audits; No 97/780/EC of 29 October 1997, Unisource, LawLex200400002552JBJ: annual audit of accounts by the Commission with communication of all necessary information for such audit; No 2000/182/EC of 14 September 1999, GEAE/P & W, LawLex200400002581JBJ: obligation to notify the Commission of any change in the area of activity of the joint venture; No 1999/695/EC of 15 September 1999, REIMS II, LawLex200400002625JBJ: obligation for postal operators to present to the Commission the annual reports on the evolution of domestic rates, cross-border mail tariffs, costs, and the evolution of flows of cross-border mail.

Case T-289/01 Duales System Deutschland v Commission [2007] ECR II-1691, LawLex200700001494JBJ.

Commission Decision No 76/248/EEC of 23 December 1975, United Reprocessors GmbH, LawLex200400002390JBJ.

Commission Decision No 2001/143/EC of 29 December 2000, Unisource, LawLex200500004720JBJ.

Commission Decision No 1999/695/EC of 15 September 1999, REIMS II, LawLex200400002625JBJ.

Case T-289/01 Duales System Deutschland v Commission [2007] ECR II-1691, LawLex200700001494JBJ: the exemption decision, by which an undertaking, operating the first collective national packaging collection and recovery system, must allow the use of collection facilities of its contractual partners by competing collection systems, is justified due to the need to avoid any elimination of competition on the market.

Commission Decision No 97/781/EC of 29 October 1997, Uniworld, LawLex200400002553JBJ.

Commission Decision No 96/546/EC of 17 July 1996, Atlas, LawLex200500004762JBJ; No 97/780/EC of 29 October 1997, Unisource, LawLex200400002552JBJ.

Commission Decision No 82/628/EEC of 18 August 1982, Distribution system of Ford Werke AG - interim measure, LawLex200500004105JBJ; No 93/174/EEC of 24 February 1993, Tariff structures in the combined transport of goods, LawLex200500004821JBJ; No 97/780/EC of 29 October 1997, Unisource, LawLex200400002552JBJ; No 1999/781/EC of 15 September 1999, British Interactive Broadcasting/Open, LawLex200500005276JBJ: the exemption for a joint venture agreement, whose object is to provide consumers with a new interactive digital television service, may be subject to the commitment to grant third parties access to digital terminals subsidized by one of the founding undertakings under the same conditions.

Commission Decision No 1999/781/EC of 15 September 1999, British Interactive Broadcasting/Open, LawLex200500005276JBJ.

This was mostly the case in the earlier decisions with the Commission subsequently making undertakings "offer proposals": the law becomes more flexible and less directive but at the same time more ambiguous; the balance of power during this "negotiation" would often go against the interests of the undertaking.

The conditions directly affect the validity of the agreement. They are conditions subsequent i.e. non-compliance entails the cancellation of the exemption decision. They are also suspensory as they make the derogation subject to an action by the undertaking or an event. By contrast, the validity of the exemption is not subject to obligations the object of which is most often to ensure that the Commission is regularly informed.

European Competition Law

75. Commitments/Conditions and obligations

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

75. Commitments/Conditions and obligations

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise