On 23 November 2017, the Court of Justice of the European Union (CJEU) surprised many competition law commentators, when it appeared to challenge the validity of the ‘commitments procedure’ under Article 9 of Council Regulation 1/2003.
The commitments procedure is a mechanism whereby the European Commission may reach a settlement with companies to take or refrain from a particular action, in exchange for an end to any investigation.
The case concerned a referral from the Spanish Supreme Court regarding a question of law, that being whether national courts are barred from declaring an agreement to be an infringement of competition law when the Commission has accepted commitments regarding the agreement in question.
The CJEU considered the question and held that a commitments decision by the Commission does not preclude or bar a national competition authority or court from applying Articles 101 and 102 TFEU and considering any agreement anti-competitive. The CJEU considered the nature of a commitments decision and held it does not consider whether an infringement in law has occurred, and therefore national courts and authorities are free to declare it so. Commitments are given without prejudice to the rights of the parties and therefore do not admit that a competition law infringement has taken place.
The CJEU went further, and held that the commitments decision itself is an indication of the anti-competitive conduct or agreement in question. The CJEU observed “the commitment decision cannot ‘legalise’ the market behaviour of the undertaking concerned, and certainly not retroactively”. Additionally, in words that may hold much importance in future litigation proceedings (and possibly contradict the earlier assertion that a commitments decision was not an infringement of law), the CJEU then went to state that a commitments decision could be regarded “as an indication, if not primae facie evidence, of the anticompetitive nature of the agreement at issue”.
It remains to be seen if this finding will undermine future commitments decisions. The CJEU’s logical, if unhelpful finding to the integrity of commitments certainly leaves a door open for a company to sue another which has reached commitments with the Commission, and to press for damages. Such a case would blur the line between a stand-alone action where someone sues but must establish the anti-competitive nature of the conduct, and a follow-on action following a finding of infringement. In a follow-on action, the illicit conduct is already proved by the regulator’s decision and rather it is for the claimant to merely prove their harm and exposure to the action in question.