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 commitment procedure referred to in Article 9 of Regulation No 1/2003 makes it possible for undertakings concerned by the competition concerns contained in the preliminary assessment of the Commission  - which intends to adopt a decision requiring that an infringement be brought to an end - to offer commitments likely to resolve those concerns. The “undertakings concerned” are those which are  …

Commitments

The commitment procedure referred to in Article 9 of Regulation No 1/2003 makes it possible for undertakings concerned by the competition concerns contained in the preliminary assessment of the Commission  - which intends to adopt a decision requiring that an infringement be brought to an end - to offer commitments likely to resolve those concerns. The “undertakings concerned” are those which are responsible for the conduct and which are liable to be penalized because of it . If approved, commitments are made binding by means of a Commission decision, which may be adopted for a fixed period. 

The Commission must first publish a summary of the case and the content of the proposed commitments or guidance . Interested third parties have at least one month in which to submit their observations . Undertakings concerned by the procedure are granted the right to be heard on the essential elements underlying the commitments made binding .

The Commission does not have to give the reasons why it finds the commitments to be insufficient. It may, pursuant to its decision-making autonomy, choose between a decision making the commitments binding  and a decision requiring the undertaking to bring an end to the infringement . The fact that it initially considered using the commitments procedure in a case does not deprive it of the possibility of changing its mind and ultimately imposing a fine on the undertaking in question .

Compliance with the principle of proportionality is required in both cases but is less burdensome when a decision is adopted under Article 9. The review by the Commission is confined to verifying that the commitments in question address the competition concerns raised  and that the parties have not offered less onerous commitments than the ones that have been made binding . On the other hand, it is not obliged to seek solutions that are less stringent or more moderate than the commitments proposed by the undertakings themselves . Conversely, under the Article 7 commitments procedure, in exchange for the absence of a finding of infringement and the imposition of a fine, undertakings accept that their commitments may go beyond what the Commission could impose on them .

The market analysis and the identification of the infringement made during the preliminary assessment must be sufficient to allow the EU court to review whether the commitment is appropriate in order to achieve the objective pursued, even if they do not imply a definition as clear as that required for adopting a decision to put an end to the infringement. On the other hand, the Commission is not required to assess whether the agreement or practice in question is likely to benefit from an exemption under Article 101 (3) TFEU, since the procedure for commitments does not require the finding of an infringement . Similarly, the provisional nature of the preliminary assessment, like that of the Statement of Objections, means that the Commission is not obliged to explain, in the decision it adopts pursuant to Article 9 of Regulation No 1/2003, the reasons why it has, where appropriate, dropped one or more objections which corresponded to some of its initial concerns, whether with regard to the undertaking whose commitments have been made binding or to interested third parties, or to send a revised preliminary assessment . In addition, although the Commission is considered the sole author of commitments made wholly or partially binding for a specified or unspecified period, it cannot substitute itself for the parties in modifying them . However, it cannot accept commitments which might prove contrary to Article 194 TFEU and jeopardize the objectives pursued by the principle of energy solidarity or the security of the Union's energy supply, even if they can meet its competition concerns on the market concerned .

Article 9 establishes a limited list of cases where the proceedings can be reopened at the Commission's own initiative or on request; this involves cases where:

- there has been a material change in any of the facts on which the decision was based,

- the undertakings concerned act contrary to their commitments,

- the decision was based on incomplete, incorrect or misleading information provided by the parties.

Lastly, a Commission decision accepting commitments only affords a relative protection to undertakings; in effect the Court of Justice has ruled that it does not preclude national courts from examining whether those agreements comply with the competition rules and, if necessary, declaring those agreements void pursuant to Article 101(2) TFEU . The General Court held that a commitment decision was not binding on the co-contractors of the undertaking concerned and that, as third parties to the procedure, they remained free to apply to the national courts for an assessment of whether the clauses rejected by the Commission were in fact contrary to Article 101(1) TFEU and, if such was the case, arrive at a different finding, after a more detailed examination than that carried out by the Commission . The Court of Justice did not agree. In an appeal against the General Court ruling, it took the opposite view, holding that when assessing the proportionality of the commitments entered into by the parties in the light of competition concerns, the Commission is required to take into account the interests of third parties and ensure that the rights they hold are not deprived of their substance. Consequently, the Commission cannot, in order to make binding commitments which constitute an interference with the contractual freedom of third parties, hide behind the possibility for the latter to bring proceedings before the national courts to have the agreements in question validated, since Article 16(1) of Regulation No 1/2003 prohibits the national authorities and courts from taking decisions which would run counter to a Commission decision . There is no inconsistency between the two rulings handed down by the Court of Justice: while the national courts share jurisdiction with the Commission to sanction an anticompetitive practice on the basis of Articles 101 and 102 TFEU (2017 ruling), on the other hand, they lack jurisdiction to rule on the inapplicability of those provisions (2020 ruling).

Case T-873/16 Groupe Canal + SA, Judgment of 12 December 2018, LawLex201900000325JBJ: holding that the reciprocal clauses of a license agreement which confer absolute territorial protection on the licensee and thus eliminate cross-border competition between broadcasters are such as to give rise to competition concerns within the meaning of Article 9 of Regulation No 1/2003.

Case T-170/06 Alrosa v Commission [2007] ECR II-2601, LawLex200700001352JBJ.

Case C-255/22 P Orlen SA, Judgment of 26 September 2024, LawLex202400009111JBJ.

Case C-441-07 P Alrosa Company Ltd, Judgment of 29 June 2010, LawLex201000000902JBJ, censuring Case T-170-06 Alrosa Company Ltd, Judgment of 11 July 2007, LawLex200700001352JBJ, on this point.

Case T-873/16 Groupe Canal + SA, Judgment of 12 December 2018, LawLex201900000325JBJ.

Case T-170-06 Alrosa Company Ltd, Judgment of 11 July 2007, LawLex200700001352JBJ.

Case C-255/22 P Orlen SA, Judgment of 26 September 2024, LawLex202400009111JBJ, clarifying however that the Commission's application of the principle of energy solidarity cannot lead to the imposition of more binding obligations on undertakings, going beyond the objections raised in the preliminary assessment.

Case C-547/16 Gasorba SL, Judgment of 23 November 2017, LawLex201700001931JBJ.Case

Case C-132/19 P Groupe Canal + SA and others, Judgment of 9 December 2020, LawLex202500006698JBJ.

This publication must ensure that the business secrets of the undertakings concerned are preserved.

Unlike the General Court (Case T-170-06 Alrosa Company Ltd, Judgment of 11 July 2007, LawLex200700001352JBJ), the Court of Justice considers that undertakings not covered by the procedure under Article 102 TFEU (82 EC), whose joint commitments with the second undertaking have been rejected, do not have the right to be informed and heard on the essential factual elements underlying the new commitments made binding by the Commission in the second procedure: Case  C-441-07 Alrosa Company Ltd, Judgment of 29 June 2010, LawLex201000000902JBJ.

Case T-491/07 RENV Groupement des cartes bancaires, Judgment of 30 June 2016, not available in English, according to which the Commission does not violate the principle of sound administration by choosing sanctions rather than commitments, insofar as it considers that the proposals made by the undertakings concerned are not approrpiate to remedy  the competition concerns identified.

Case T-814/17 Lietuvos geležinkeliai AB, Judgment of 18 November 2020, LawLex202000003113JBJ; Case T-612/17 Google LLC, Judgment of 10 November 2021 LawLex202100005855JBJ.

Case T-76/14 Morningstar, Judgment of 15 September 2016, LawLex201600001457JBJ: addressing the competition concerns raised, i.e. substantial barriers to switching provider, requires behavioral remedies only vis-à-vis its customers and third parties, such that allowing competitors access to the Reuters Instrument Codes ('RICs') developed by the dominant undertaking goes beyond what is necessary to address those concerns. Also see Commission Decision No 39.530 of 16 December 2009, Microsoft (Tying), LawLex201700001169JBJ: the commitments proposed by the dominant undertaking on the market  for client PC operating systems to make available a mechanism in Windows within the European Economic Area ('EEA') that enables OEMs and users to turn Internet Explorer off and on and set it as default web browser, not to retaliate against OEMs for pre-installing web browsers of their choice on the PCs they ship, and to distribute a choice screen software update to users of Windows PCs within the EEA by means of Windows Update offering a choice of web browsers, address the competition concern raised due to the practice consisting of tying the sale of its Internet Explorer web browser to that of its dominant client PC operating system “Windows”; Commission Decision No 39727 of 10 April 2014, CEZ,   : the  commitments for the divestment of assets proposed by an undertaking in a dominant position consisting of the transfer of some of its generation capacity to a competitor are a solution to the competition concerns raised by the preemptive reservation made in the electricity transmission network which may have prevented competitors from entering the market for generation and wholesale supply of electricity.

The General Court has pointed out in that respect that taking the interests of third parties into account in the context of a commitments procedure means that, among several types of commitments proposed that address just as adequately the competition concerns expressed by the Commission, the latter must make binding the commitment which, when it is implemented by the addressee of the decision, will have a less pronounced effect in regard to those third parties - Case T-873/16 Groupe Canal + SA, Judgment of 12 December 2018, LawLex201900000325JBJ.

European Competition Law

240. Commitments

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

240. Commitments

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise