In December, the European Commission accepted commitments and made them binding, to close three different investigations: first, into Thomson Reuters’ behaviour in respect of its Reuters Instrument Codes (RICs), second, into an alleged abuse of dominance by Rio Tinto Alcan in respect of aluminium smelting technology, and third, into an alleged anti-competitive agreement relating to e-book publishers (Simon & Schuster, Harper Collins, Hachette and Holtzbrinck and also Apple), the consultation versions of which were covered in our October 2012 Bulletin.
In respect of the Thomson Reuters investigation, the acceptance of the commitments comes nearly a year after commitments were first market tested, and only after a number of changes were made to those initial commitments due to the unfavourable reaction when they were first market tested. In particular, the commitments have been amended to reduce the fee attached to the extended licence that Reuters must offer for five years (and, under the revised commitments, for an additional two if the customer pays a nominal fee), and to simplify the fee structure. Furthermore, a separate licence will be made available to third party developers to enable them to develop and maintain switching tools to facilitate switching, and licences will be made available for so-called single source OTC instruments if the source provides consent (these were excluded entirely from the original commitments).
The e-books commitments appear to have been accepted in the form in which they were market tested. The details of the final Rio Tinto Alcan commitments are not yet available, but the Commission press release suggests some ‘improvements’ have been made to them since the original market testing exercise.
Providing commitments does not mean that those involved in the alleged infringements have accepted that they have infringed competition law. It means, however, that the Commission’s investigation is closed without any finding of infringement against those accused, and without any further expenses being incurred by those under investigation, making it an attractive option in some circumstances. However, the defendant will not be able to appeal the commitments, having given them voluntarily, and will be exposed to possible fines by the Commission of the same level as for substantive breaches of EU competition law, if it fails to comply with the commitments.