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 parties may submit commitments during the two phases of the procedure . Unlike commitments submitted during phase II, the object of phase I commitments is not to prevent the creation or strengthening of a dominant position. They must constitute a direct and sufficient response capable of clearly excluding the serious doubts expressed by the Commission  and permit the adoption of a decision of  …

Commitments procedure

The parties may submit commitments during the two phases of the procedure . Unlike commitments submitted during phase II, the object of phase I commitments is not to prevent the creation or strengthening of a dominant position. They must constitute a direct and sufficient response capable of clearly excluding the serious doubts expressed by the Commission  and permit the adoption of a decision of approval without initiating the Phase II procedure . The parties must propose commitments that are full and effective from all aspects . 

A review clause stipulating the conditions under which the Commission, on a request from the merged entity, will be able to grant an extension of time-limits or waive, amend or substitute those commitments is generally included in the commitments . Commitments may be amended or waived even in the absence of a review clause if they become obsolete or disproportionate owing to subsequent exceptional developments . As regards a request for a waiver of commitments rendered binding by a decision declaring a concentration compatible with the internal market, the assessment of the request does not necessarily give rise to the same difficulties of prospective analysis as an analysis of a merger operation, insofar as the Commission only needs to ascertain whether the conditions laid down by the review clause are fulfilled or to evaluate, in retrospect, whether the assumptions made at the time when the concentration was authorized have proved to be correct or whether the serious doubts raised by the concentration still persist. Although the Commission has a certain discretion in the assessment of a waiver request , it is nonetheless obliged to carry out a careful examination of that request, to conduct, if necessary, an investigation, to make the appropriate inquiries and to base its conclusions on all the relevant information . The Commission cannot modify the submitted project : it only has the power to declare whether the transaction is compatible or incompatible . It is also not obliged to completely resume its analysis each time it receives new proposed commitments . By contrast, it must explain in what way the commitments do not resolve the competition concerns raised . Finally, the final commitments to which the authorization of a merger is subject must be interpreted in the light of the clearance decision, the Merger Regulation and the Commission Notice on remedies . According to the Court of Justice, Form RM, which is not a purely preparatory document, but a supplementary document to the commitments which gathers relevant information aimed at demonstrating that the remedies provided for in those commitments are such as to render the transaction in question compatible with the internal market, is of key importance in enabling the Commission to assess the content, purpose, viability and effectiveness of the commitments proposed for enabling it, where appropriate, to authorize a concentration .

Furthermore, a third party to the merger operation has no individual right to oblige the Commission to adopt a decision finding that the new entity has infringed the final commitments and taking measures to restore fair conditions of effective competition for the purposes of Article 8(4) or (5) of Regulation No 139/2004, even if the conditions justifying such a decision are satisfied. Indeed, neither Regulation No 139/2004 nor Commission Regulation No 802/2004 makes provision for a procedure by which third parties to a concentration are entitled to lodge a complaint with the Commission against the parties to that concentration for breach of the conditions attached to the decision declaring that concentration to be compatible with the internal market, even where those third parties are potential beneficiaries of those conditions. It is for the legislature not the courts of the Union to close that loophole concerning the control of concentrations. However, without prejudice to the possibility for the Commission to find an infringement of the final commitments and to take the measures it deems appropriate by means of a decision adopted under Article 8(4) and (5) of Regulation No 139/2004, it is entirely permissible for third parties benefitting from the legal effects of those commitments  to rely thereupon before the competent national courts, which must rule on such disputes or refer a question for a preliminary ruling to the Court of Justice on the validity or the interpretation of the final commitments or final decision .  

The commitments offered by the parties during phase I must be submitted to the Commission within twenty working days from the date of receipt of the notification (Regulation No 802/2004, Article 19(1) ). Those submitted to the Commission during phase II must be sent within sixty-five working days from the date on which proceedings were initiated . This period is automatically extended where the period granted to the Commission to adopt its decision is extended in accordance with the second paragraph of Article 10(3) of Regulation No 139/2004. In exceptional cases, the Commission may accept commitments proposed after the expiration of the time period for submission where the procedure provided for in Article 19(5) of Regulation No 139/2004 is complied with .

In principle, the Commission has no obligation to accept commitments submitted after the deadline . However, it may take them into account where there is no doubt as to their being capable of immediately restoring effective and lasting competition  or where the Commission considers that it has had the time necessary to examine them . However, its non-contractual liability cannot be incurred where it has rejected commitments submitted out of time, after having certified that they were unlikely to respond to its competition concerns .

The parties may submit proposals for commitments to the Commission on an informal basis, even before notification. See Commission Notice on remedies, at pt 78.

Case T-119/02 Royal Philips Electronics v Commission [2003] ECR II-1433, LawLex200400003306JBJ.

Case T-87/05 EDP v Commission [2005] ECR II-3745, LawLex200500010187JBJ.

Case T-87/05 EDP v Commission [2005] ECR II-3745, LawLex200500010187JBJ: Case T-380/17 HeidelbergCement AG, Judgment of 5 October 2020, LawLex202000002237JBJ: The  Commission is entitled, when rejecting a proposed remedy, to find that  the commitments offered a mere, uncertain business opportunity for a new  lessee to start selling grey cement which is not comparable to the  divestiture of an existing standalone business, without however  considering that the only valid commitments are those which are  comparable to such a divestiture.

Case T-430/18 American Airlines, Judgment of 16 December 2020, LawLex202300003889JBJ, stating that insofar as Article 20(1a) of Regulation No 802/2004 provides that, when offering commitments referred to in Article 6(2) of Regulation No 139/2004, the undertakings concerned must at the same time submit one original of the information and documents prescribed by the Form RM relating to remedies as set out in Annex IV to the Implementing Regulation, the existence of the Form RM derives from the Merger Regulation and consequently the terms of the final commitments to which the authorization of the merger is subject must be interpreted in the light of that form and of what the merging parties indicate in it.

Case C-127/21 P American Airlines Inc., Judgment of 16 March 2023, LawLex202300003889JBJ.

Case T-43/16 1&1 Telecom GmbH, Judgment of 9 October 2018, LawLex201800001483JBJ; Case T-884/16 Multiconnect, Judgment of 9 October 2018, not available in English; Case T-885/16 Mass Response Service, Judgment of 9 October 2018, not available in English.

Case T-114/02 BaByliss v Commission [2003] ECR II-1279, LawLex200400003303JBJ.

Where the parties submit commitments within less than 55 working days after the initiation of proceedings, the Commission has to take a final decision within not more than 90 working days of the date of initiation of proceedings. Where the parties submit commitments on working day 55, the period for the Commission to take a final decision is increased to 105 working days, Commission Notice No 2008/C 267/01, at pt 89.

Commission Decision M.3440 of 9 December 2004, EDP/ENI/GDP, LawLex200700000224JBJ.

Case T-87/05 EDP v Commission [2005] ECR II-3745, LawLex200500010187JBJ; Commission Decision M.3440 of 9 December 2004, EDP/ENI/GDP, LawLex200700000224JBJ; M.1628 of 9 February 2000, TotalFina/Elf, LawLex200500005291JBJ.

Case T-430/18 American Airlines, Judgment of 16 December 2020, .

Case T-114/02 BaByliss v Commission [2003] ECR II-1279, LawLex200400003303JBJ; Case T-119/02 Royal Philips Electronics v Commission [2003] ECR II-1433, LawLex200400003306JBJ.

Case T-212/03 MyTravel v Commission [2008] ECR II-1967, LawLex200900000160JBJ.

Case T-87/05 EDP v Commission [2005] ECR II-3745, LawLex200500010187JBJ; Case T-210/01 General Electric v Commission [2005] ECR II-5575, LawLex200600000175JBJ. It is not for the General Court to substitute its own economic assessment for that of the Commission with respect to the need for commitments to be given in order to dispel the serious doubts raised by a concentration, even if other commitments, more favorable to competition, might also have been accepted insofar as the Commission was reasonably entitled to conclude that the commitments set out in the decision were likely to render the operation compatible with the internal market : Case T-471/11 Editions Odile Jacob, Judgment of 5 September 2014, LawLex201500000736JBJ.

The Notice on remedies, which sets out general conditions for the review of commitments in points 71 and 74, authorizes, as a more targeted review clause, a non-repurchase clause which would stipulate review conditions for the purpose of clarifying the conditions set by the general review clause, see Case T-583/20 Italia Wanbao-ACC v Commission, Judgment of 31January 2024, not available in English.

Case T-583/20 Italia Wanbao-ACC v Commission, Judgment of 31January 2024, not available in English: examining a request for exemption from commitments made binding by a decision declaring a merger to be compatible with the internal market, requires verification as to whether the conditions laid down in the review clause usually attached to commitments have been met, or to assess, with hindsight, whether the predictions made at the time the merger was cleared have turned out to be correct, or whether the serious doubts raised by the merger are still valid.

by failing, in the contested decision, to ascertain whether, in the ten-month period between the decision authorizing the merger and the request for partial lifting of the prohibition on takeovers, the structure of the relevant market had undergone a lasting change, the Commission erred in law.

Case T-712/16 Deutsche Lufthansa, Judgment of 16 May 2018, LawLex201800000719JBJ. 

Case T-87/05 EDP v Commission [2005] ECR II-3745, LawLex200500010187JBJ; Case T-210/01 General Electric v Commission [2005] ECR II-5575, LawLex200600000175JBJ.

Case T-380/17 HeidelbergCement AG, Schwenk Zement KG et Duna-Dráva Cement Kft., Judgment of 5 October 2020, LawLex202000002237JBJ: in the absence of a commitment capable of entirely removing the  competition concerns identified, the transaction which would  significantly impede effective competition through non-coordinated  effects, which would amount in particular to the creation of a dominant  position in the gray cement market in the area around Cemex’s plant in  Split, must be declared incompatible with the internal market.

European Competition Law

358. Commitments procedure

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358. Commitments procedure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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