Brussels, 17. September 2004
Commitment decisions (Article 9 of Council Regulation 1/2003 providing for a modernised framework for antitrust scrutiny of company behaviour)
Frequently asked questions and answers
Q: In what kind of cases does the Commission adopt commitment decisions?
A: This instrument is novel and the conditions for its use are flexible. The Commission is never obliged to terminate its proceedings by adopting an “Article 9” commitment decision, but it can consider such a decision if and when:
The commitments can be either behavioural or structural and may be limited in time. Moreover, the Commission can reassess the situation if a material change takes place in any of the facts on which the decision was based. It is also possible for the company to ask the Commission to lift a commitment that is no longer appropriate.
For the first time an Article 9 procedure, which became available on the 1st of May, began in mid-September in relation to the liberalisation of the central marketing of the German Football League (Bundesliga) broadcasting rights (see IP/04/1110).
Q: What are the effects of a commitment decision?
A: First, the company to whom the decision is addressed must respect the conditions of the settlement. Otherwise the Commission can impose on it a fine amounting up to 10 % of their turnover, and also periodic penalty payments are possible until it complies with the commitments. Moreover, national courts must enforce the commitments by any means provided for by national law, including the adoption of interim measures.
Second, Article 9 decisions are silent on whether there was or still is a breach of the EU competition rules. Thus a customer or a competitor possibly seeking private enforcement in national courts still needs to prove the illegality of the former behaviour to obtain compensation for damages.
Third, the same companies may still face enforcement action before Member States’ authorities and courts, provided that the uniform application of the competition rules throughout the EU is not jeopardised.
Fourth, while the addressee of a commitment decision does not receive a prohibition decision, with the consequent negative publicity, for a violation of the antitrust rules, neither does it get the Commission’s blessing, the commitment decision being a substitute for a prohibition decision and not for an exemption decision. The commitment decision is a formal settlement solicited by a company under investigation and agreed by the Commission where its enforcement priorities justify this choice.
Q: How can other, interested companies know of the settlement discussions and express their concerns?
A: The Commission must publish a summary of the case and the main content of the offered commitments in the EU Official Journal and, in addition, it publishes the full text of the commitments in their original language on the Internet. There is one month for any interested party to make comments. If this so-called market test reveals any weaknesses of the proposed course of action, the Commission can renegotiate or abandon the settlement option and revert to the prohibition scenario if appropriate.