Third parties often complain that commitment decisions – where antitrust defendants offer binding remedies to end an EU investigation without penalties – fail to resolve antitrust issues or have a damaging effect on third parties.
The Morningstar judgment confirms how difficult it is to successfully appeal a commitment decision:
- The European Commission has wide discretion when assessing the adequacy of commitments. The EU courts' review is limited to whether the commission has committed a manifest error of assessment by accepting or rejecting commitments.
- The commission is not required to seek less onerous or more moderate solutions than the commitments offered to it. The EU courts examine only whether the commitments address the competition concerns provisionally identified. It is irrelevant whether other solutions may have been more favourable to competition or less detrimental to third-party interests.
In 2009 the commission initiated antitrust proceedings against Thomson Reuters. The commission had concerns that Thomson Reuters abused its dominant position in the global market for consolidated real-time data feeds.
Consolidated real-time data feeds are virtual pipelines that supply continually updated market information from several sources and are typically used in applications developed by banks and financial institutions (eg, for electronic trading). Thomson Reuters is a provider of consolidated real-time data feeds. It has also developed a product known as Reuters Instrument Codes (RICs). RICs are alphanumerical codes that identify securities and their trading locations.
The commission's concerns revolved around Thomson Reuters's licensing practices and whether it created substantial barriers to switching providers of consolidated real-time data feeds. Thomson Reuters prohibited:
- its customers from using RICs to retrieve data from consolidated real-time data feeds of other providers; and
- third parties and competing providers from developing mapping tables incorporating RICs that would allow the systems of Thomson Reuters customers to interoperate with consolidated real-time data feeds of other providers.
Following a two-year investigation, the commission and Thomson Reuters agreed to settle the case. The commission adopted a preliminary assessment which found that Thomson Reuters may have abused its dominant position by imposing licensing restrictions regarding the use of RICs. Thomson Reuters committed to offer two types of licensing agreement for a five-year period to address the commission's concerns:
- an extended licence agreement allowing its customers to pay a monthly licence fee to use RICs to retrieve real-time data feeds of other providers; and
- a third-party developer licence agreement enabling third-party developers to enter into agreements with other providers of real-time data feeds and develop mapping tables.
The commission adopted a decision making the commitments binding on Thomson Reuters.(1) Morningstar, a competitor of Thomson Reuters in the consolidated real-time data feed market, appealed the commission's commitment decision before the General Court.(2)
Morningstar alleged that the commitments made binding on Thomson Reuters did not address the antitrust concerns identified in the commission's preliminary assessment. The commitments seek to facilitate the switch of Thomson Reuters customers to competing providers. However, the commitments exclude competing providers from entering into an extended licence agreement or third-party developer licence agreement. In practice, a competing provider of a consolidated real-time data feed must partner with a third-party developer to offer an alternative to Thomson Reuters customers.
The General Court noted that the commitment decision must be assessed in light of the concerns that the commission expressed in its preliminary assessment. So the key question was whether the commitments made binding were "sufficient to address adequately"(3) those concerns. The commission had wide discretion in determining this. The General Court limited its judicial review of the commitment decision to establishing that the evidence relied on by the commission:
- was factually accurate, reliable and consistent;
- contained all of the information that should have been taken into account to assess the situation; and
- was capable of substantiating the conclusions drawn from it.
The General Court concluded that the commission was reasonably entitled to take the view that its concerns could be resolved by behavioural commitments regarding Thomson Reuters customers and third parties, and not Thomson Reuters competitors.
The General Court also rejected Morningstar's argument that the commitment decision infringed the principle of proportionality. The fact that the commission's concerns could be addressed by including competing providers in the licence terms (even if that would have been more favourable to competition) did not establish that the commitment decision was unlawful. The application of the principle of proportionality to commitments decisions is more restricted than its application to prohibition decisions. For the commitments decision at issue, the commission needed only to verify that:
- the commitments addressed its concerns as expressed in the preliminary assessment; and
- Thomson Reuters did not offer less onerous commitments addressing these concerns.
On these grounds, the General Court upheld the commission's commitment decision.
Commitment decisions may significantly affect third parties' rights. Complainants may see the commission's investigation being wrapped up on the basis of what they consider lukewarm commitments. Third parties not involved in the commission's investigation may suddenly realise that the investigated company has offered to unilaterally amend existing contractual arrangements with them.
Where an ongoing antitrust investigation risks significantly affecting their position on the market, third parties would be well advised to actively participate in the commission's proceedings against the investigated company. Active participation through submissions and corroborating evidence can help shape the commission's thinking on the case. It could go a long way to ensure that any preliminary assessment and subsequent commitment decision correctly identifies and addresses the antitrust concerns. As the EU courts tend to take a largely hands-off approach to commitment decisions, an intervention later on in the process by means of an appeal is unlikely to succeed on its own.
For further information on this topic please contact Bill Batchelor or Agapi Patsa at Baker & McKenzie by telephone (+32 2 639 36 11) or email (email@example.com or firstname.lastname@example.org). The Baker & McKenzie website can be accessed at www.bakermckenzie.com.
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