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

Behavioral commitments occur more rarely as they often require constant monitoring by the competition authorities. Such commitments are usually adopted either if transfers are not possible or where the harm to competition caused by the operation does not have a structural origin. Such commitments have been given concerning: the grant of access to infrastructures or markets , the abandoning of excl …

Behavioral commitments

Behavioral commitments occur more rarely as they often require constant monitoring by the competition authorities. Such commitments are usually adopted either if transfers are not possible or where the harm to competition caused by the operation does not have a structural origin. Such commitments have been given concerning: the grant of access to infrastructures or markets , the abandoning of exclusive agreements , certain markets  or sectors of activity , the termination of distribution agreements , long-term supply  or license agreements , the granting of licenses , increases in production capacity , limiting the exercise of voting rights within an undertaking  and resorting to arbitration  or the appointment of a trustee.   The parties to the concentration can also undertake not to engage in competition after the divestment, in order to ensure the transfer of the business , not to disclose certain information  or, on the other hand, to disclose other information , or, in the telecommunications sector, to proceed to local loop unbundling .

Behavioral commitments, according to the Commission, must be at least equivalent in their effects to a divestiture  and must be limited in their duration .

Commission Decision M.3083 of 2 September 2003, GE/Instrumentarium, LawLex200400003302JBJ: commitment given by the parties ensuring electrical and mechanical interoperability on the market of anaesthesia machines, perioperative and critical care monitors and clinical information systems; M.3410 of 8 October 2004, Total/Gaz De France (not available in English): On authorized concentrations on the gas market subject to the parties giving access to storage capacities and transport according to regulated conditions and prices and Decision M.3696 of 21 December 2005, E.ON-MOL, LawLex200600002086JBJ; M.3440 of 9 December 2004, EDP/ENI/GDP, LawLex200700000224JBJ: relative to the commitment taken by producers on the market of electricity at the wholesale level, to lease three production units by 2010 which were not sufficient to guarantee that new competitors would enter the market; Case T-158/00 ARD v Commission [2003] ECR II-3825, LawLex200400003308JBJ; Commission Decision M.2876 of 2 April 2003, Newscorp/Telepiù, LawLex200400003299JBJ: concentrations authorized subject to the parties making accessible to competitors the combined pay TV and interactive digital technical platform on the pay TV market; M.1684 of 25 January 2000, Carrefour/Promodes (not avaiblable in English); M.1795 of 12 April 2000, Carrefour/Promodes (not avaiblable in English) LawLex200400003064JBJ: concerning the non-discriminatory access to the merged entity's network in the mobile telephony services sector; M.1853 of 7 February 2001, EDF/EnBW, LawLex200400002648JBJ; M.1915 of 13 March 2001, The Post Office/TPG/SPPL, LawLex200400002649JBJ: a concentration on the Dutch market of commercial cross-border mail services is declared compatible with the common market, subject to commitments by the parties to transfer to a third party the Dutch outbound cross-border mail service activity, previously provided by a subsidiary, by enabling it to benefit, for a transitional period, from its network of agreements for the collection, transport and delivery of mail, so that the third party in question could effectively compete with the new entity; M.2389 of 20 December 2001, Shell/DEA, LawLex200400002679JBJ: on the access to essential infrastructures M.2533 of 20 December 2001, BP/E.ON, LawLex200400002685JBJ: petrochemicals sector; M.2803 of 10 July 2002, Telia/Sonera, LawLex200500004197JBJ: concerning non-discriminatory access to telecommunications networks by the incumbent operators party to the concentration; see also Commission Decision M.2903 of 30 April 2003, Daimler Chrysler/Deutsche Telekom/JV, LawLex200700002008JBJ; M.3280 of 11 February 2004, Air France/KLM, LawLex200500004208JBJ: concerning the commitment by the parties to the concentration to make available for an unlimited duration a certain number of take-off and landing slots to airlines likely to enter the market; Case T-177/04 EasyJet v Commission [2006] ECR II-193, LawLex200700001484JBJ: the Commission's preference for commitments relating to the assignment of slots rather than aircraft is justified insofar as access to slots is the main barrier to entry on the market of air transport of passengers.

Commission Decision M.4504 of 18 July 2007, SFR/Télé 2 France, LawLex200800000216JBJ: the acquisition by an operator in a highly significant position on the upstream and intermediate pay TV markets of an operator present on the downstream DSL distribution market can only be authorized on condition that commitments are given to give access to the channels it produces and of which it holds exclusive rights, to all broadcasters under normal market conditions, without discrimination and granting exclusive distribution rights even by means of a call for tender; M.009 of 8 February 1991, Fiat Geotech /Ford New Holland, LawLex200400003209JBJ: on the removal of the barrier to entry from exclusive distribution agreements, by manufacturers allowing dealers to market competing brands; M.422 of 15 March 1994, Unilever France/Ortiz Miko (II) (not available in English): termination of exclusivity agreement on impulse markets; M.477 of 14 February 1995, Mercedes- Benz/Kässbohrer, LawLex200400002512JBJ: On the recent entry to the market of important foreign suppliers encouraged by the commitment made by the parties to put an end to exclusivity clauses concluded with their distributors and contracted garages; M.877 of 30 July 1997, Boeing/McDonnell Douglas, LawLex200400002566JBJ: on the undertaking to end exclusivity clauses in the aeronautical sector; M.986 of 11 February 1998, Agfa-Gevaert/DuPont, LawLex200500004405JBJ: on the commitment to remove some exclusivity agreements both with suppliers, in order to open access to raw materials to competitors, and with distributors; JV.15 of 30 March 1999, BT/AT&T, LawLex200500004175JBJ: the waiver, by one of parent companies, of the distribution exclusivity of the service proposed by a third party is likely to prevent customers from being redirected to the joint venture, which would distribute the services in question via the other party to the venture; M.2876 of 2 April 2003, Newscorp/Telepiù, LawLex200400003299JBJ: commitment given on the pay TV market to limit in terms of both scope and duration, exclusivity rights on premium films and sporting championships.

Commission Decision M.1027 of 27 May 1998, Deutsche Telekom/BetaResearch, LawLex200500004396JBJ; M.993 of 27 May 1998, Bertelsmann/Kirch/Premiere, LawLex200500004166JBJ; M.1185 of 4 June 1998, Alcatel/Thomson CSF-SCS (not available in English); M.1684 of 25 January 2000, Carrefour/Promodes (not avaiblable in English): the concentration is declared compatible with the common market subject to a commitment by the acquiring group to have recourse to an arbitrator in the event of a dispute concerning the performance of the behavioral commitments.

Commission Decision M.4187 of 12 December 2006, Metso/Aker Kvaerner, LawLex200700001836JBJ, on the possibility of appointing a Monitoring Trustee in order to solve potential conflicts between the seller and the purchaser particularly on how to separate the divested businesses from the businesses remaining with the merged entity, as the concentration cannot be completed before a Monitoring Trustee has been appointed after approval by the Commission; Case C-553/10 P Commission v Éditions Odile Jacob [2012], LawLex201200002287JBJ, holding that the fact that the trustee having drawn up the report assessing the  prospective purchaser of the assets sold is a former member of the governing body of the undertaking in which those assets were held, vitiates the lawfulness of the Commission's decision approving the purchaser and results in its annulment due to lack of independence of the trustee. Also see Case T-452/04, Éditions Odile Jacob SAS, Judgment of 13 September 2010, LawLex201400000168JBJ; Case  T-471/11 Editions Odile Jacob, Judgment of 5 September 2014, LawLex201500000736JBJ, holding that the Commission is entitled to adopt a new retroactive approval decision following the illegality found by the General Court with regard to the lack of independence of the trustee,where such an act fulfils a general interest objective and is without prejudice to the legitimate expectations of the persons to whom it is directly addressed or to those of third parties.

Commission Decision M.1915 of 13 March 2001, The Post Office/TPG/SPPL, LawLex200400002649JBJ: a concentration that leads to the elimination of a competitor and gives the parties an 80% - 90% control of a market with little transparency can only be authorized subject to a commitment to the divestment of businesses with a specific guarantee not to solicit the current customers of the transferred business. 

Commission Decision M.582 of 20 September 1995, Orkla/Volvo, LawLex200400002523JBJ: the assignment of certain activities to an independent third party, may be subject to the commitment not to disclose to the new entity any professional secrets relative to the transferred activities; M.877 of 30 July 1997, Boeing/McDonnell Douglas, LawLex200400002566JBJ: on the commitment not to disclose certain information relative to R&D projects for a period of ten years; JV.15 of 30 March 1999, BT/AT&T, LawLex200500004175JBJ: the likelihood of coordinated behavior between the parent companies can be avoided by a commitment by one of them not to obtain information concerning a competitor from the other company in which it has an interest; M.3099 of 6 October 2004, Areva/Urenco/ETC JV, LawLex200600001245JBJ: a concentration is not likely to give rise to coordination between the parent companies that are downstream competitors due to the commitment to reinforce firewalls to prevent information flows between the parties and the joint venture.

Commission Decision M.2861 of 30 April 2003, Siemens/Drägerwerk/JV, LawLex200700000250JBJ: the merger operation can be authorized subject to commitments in respect of its vertical effects, to maintain the interoperability of their equipment, specifically by making immediately available on a non-discriminatory basis and free-of-charge information relative to interfaces and communications protocols.

Commission Decision M.1439 of 13 October 1999, Telia/Telenor, LawLex200400002631JBJ: the commitment to unbundle the local loop makes the operation capable of being compatible with the common market insofar as it assures that the merged entity will remain subject to at least the same degree of competition as each of the parties were prior to the proposed merger by granting new entrants the ability to establish a unique customer relation with their clients.

Commission Notice No 2008/C 267/01 of 22 October 2008, on remedies acceptable under Regulation No 139/2004 and Regulation No 802/2004, at pt 61.

Commission Notice No 2008/C 267/01 of 22 October 2008, on remedies acceptable under Regulation No 139/2004 and Regulation No 802/2004, at pt 70.

Commission Decision M.7637 of 4 February 2016, Liberty Global/BASE Belgium, LawLex201700000668JBJ: merger cleared subject to commitments by notifying party to divest two customer bases in order to create a mobile operator with the necessary scale and scope to compete aggressively on the retail market for mobile telecommunications and recreate to the greatest extent possible the competitive pressure exercised by it pre-operation.

Commission Decision M.157 of 5 October 1992, Air France/Sabena (not available in English): the concentration relating to different air routes, which places the new entity in a monopoly situation, can only be authorized subject to the respect of commitments of the withdrawal from these routes by one of the two airlines of the entity; M.2779 of 8 May 2002, Imperial Tobacco/Reemtsma Cigarettenfabriken, LawLex200500004195JBJ: the concentration, which strengthens the dominant position of the purchaser, is nevertheless compatible with the common market, subject to the parties, suppliers of own-brand tobacco to distribution channels, undertaking not to develop brands for their own account, in order to eliminate the dependence of distributors on them by allowing them to switch suppliers easily while retaining the brand.

Commission Decision M.1229 of 28 September 1998, American Home Products/Monsanto, LawLex200400003062JBJ: the commitment given by one of the parties to the merger to put an end to a distribution agreement, the continuation of which may have led to a resumption of the activities of the merged undertakings and would consequently have created or strengthened a dominant position, allows the merger to be declared compatible with the common market; M.1806 of 26 July 2000, AstraZeneca/Novartis, LawLex200500004487JBJ: a potentially anticompetitive concentration may nevertheless be declared compatible with the common market, subject of the parties' compliance with their commitment to terminate certain distribution agreements in order to remedy the problem of possible overlaps on certain markets.

Commission Decision M.2822 of 17 December 2002, EnBW/ENI/GVS, LawLex200700000251JBJ: the acquisition of an undertaking in a dominant position can only be cleared subject to the possibility for each client of the new entity to terminate long-term supply agreements in advance.

Commission Decision M.2139 of 3 April 2001, Bombardier/ADtranz, LawLex200400002652JBJ: relative to commitments to transfer licenses guaranteeing the independence of three suppliers able to compete with the new entity; M.1378 of 9 August 1999, Hoechst/Rhône-Poulenc, LawLex200400003063JBJ: termination of certain license and trading agreements to eliminate the competition concerns resulting from the associating of two leading-edge medicines; see also M.012 of 31 July 1991, Varta/Bosch, LawLex200400002473JBJ.

Commission Decision M.877 of 30 July 1997, Boeing/McDonnell Douglas, LawLex200400002566JBJ: relative to the commitment to grant licenses on US government-funded patents on the large commercial jet aircraft market; M.1027 of 27 May 1998, Deutsche Telekom/BetaResearch, LawLex200500004396JBJ: the commitment offered by the parties to the concentration with the only infrastructure enabling access to the market to guarantee, inter alia, access to that technology through the granting of licenses under the supervision of an arbitration tribunal, is not enough to make the transaction compatible when the parties retain the sole control thereof, especially in respect of its further development; M.1671 of 3 May 2000, Dow Chemical/Union Carbide, LawLex200500004482JBJ: on the commitment by the sole holder of two technologies that are among the most important in its sector, to grant non-exclusive licenses for third parties to implement their own technology and enter the market; M.3149 of 30 July 2003, Procter & Gamble/Wella, LawLex200500004204JBJ: the merger transaction that confers a dominant position on two competing manufacturers on the national retail markets when they own three or four of the leading brands according to country, can only be authorized if they assign the exclusive licenses held for some of those brands for all segments of the sector and for a period of five years; Case T-114/02 BaByliss v Commission [2003] ECR II-1279, LawLex200400003303JBJ: the commitment made by an operator to grant an exclusive license, for a period of three years, for trademarks recovered during the resumption of the activities of a competitor in receivership, and waiving the right to exploit the trademarks on the territory of the licensees for eight years, is likely to prevent the creation or strengthening of a dominant position, insofar as the licensing agreements will allow an operator with a reputable trademark mark and access to distribution channels to establish or reinforce its own position; Case T-119/02 Royal Philips Electronics v Commission [2003] ECR II-1433, LawLex200400003306JBJ: granting of an exclusive license for all the rights and obligations relative to the selling of products for which the parties' activities overlap; Commission Decision M.3225 of 29 September 2003, Alcan/Pechiney (II), LawLex200500004206JBJ: relative to the commitment to transfer one of two essential technologies on the aluminium market through a non-exclusive license including all IP rights and the provision of technical assistance.

Commission Decision M.2434 of 26 September 2001, Grupo Villar Mir/EnBW/Hidroeléctrica del Cantábrico, LawLex200500004411JBJ: a potentially anticompetitive concentration in the electricity sector may be declared compatible with the common market subject to the parties' compliance with their commitment to increase the commercial interconnection capacity between the two Member States, which will reduce the isolation of one of them by stepping up exports and prevent members of the existing duopoly from fixing their prices with impunity; Case T-87/05 EDP v Commission [2005] ECR II-3745, LawLex200500010187JBJ: behavioral commitments such as the commitment to lease a certain production capacity which give rise to serious uncertainties and are subject to complex suspensory conditions are not sufficient to prevent the creation or strengthening of a dominant position, unless a stringent ex-post monitoring mechanism is put in place; see also: M.619 of 24 April 1996, Gencor/Lonrho, LawLex200500004381JBJ.

Commission Decision JV.15 of 30 March 1999, BT/AT&T, LawLex200500004175JBJ: the risk of coordinated behavior between the parent companies can be avoided by the commitment made by one of them, not to exercise the voting rights attached to its stake in an undertaking in competition with the other; M.1853 of 7 February 2001, EDF/EnBW, LawLex200400002648JBJ: the concentration that strengthens the dominant position of one of the notifying parties by integrating into the new entity a competitor on the border that is potentially well-placed to enter the market, can only be authorized subject to it ceasing to exert influence on another producer in which the joint venture holds shares, by not exercising its voting rights, withdrawing from the Board of Directors and no longer being involved in its commercial policy; M.3099 of 6 October 2004, Areva/Urenco/ETC JV, LawLex200600001245JBJ: the concentration which confers on a joint venture a large market share does not create a risk of coordination between the parent companies and main competitors on a downstream market, having regard to the commitments made by them to remove their veto rights; M.3440 of 9 December 2004, EDP/ENI/GDP, LawLex200700000224JBJ: relative to the commitment made by the former incumbent operator in the electricity sector to suspend its voting rights in an electricity production company; M.3653 of 13 July 2005, Siemens/VA Tech, LawLex200700002019JBJ: relative to the obligation to appoint independent trustees to exercise all voting rights, information rights and administrative rights so as to guarantee the non-disclosure of confidential information to the notifying parties without changing their status as shareholder; also see: M.833 of 11 September 1997, The Coca-Cola Company/Carlsberg A/S, LawLex200400002563JBJ.

European Competition Law

350. Behavioral commitments

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Les décisions de justice citées dans ce paragraphe :

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350. Behavioral commitments

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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