Commitments Decisions Content

The content of the commitments

The commitments should address the competition concerns identified. Commitments which are not related to the concerns or do not meet them will not be accepted by the Commission. The parties can offer commitments of a behavioural (e.g. a supply obligation) or structural nature (e.g. divestiture of a part of a company) 1 . Behavioural commitments usually have the disadvantage that they require long-term monitoring.

More about Commitments Decisions Content

In principle, the commitments offered should be proportionate, i.e. not go beyond what is needed to remedy the competition concern. However, the ECJ has clarified that the proportionality test is less strict than in case of an imposed remedy under Article 7 2 . This is because Article 7 and Article 9 have different objectives and use different mechanisms 3 , and in addition, because commitments are submitted voluntarily by the parties and not imposed by the Commission. 4 The Commission should however verify that: (a) the commitments are sufficient to address its competition concerns; and (b) the undertakings have not offered less onerous commitments that also address the concerns adequately.

More about the Subject

Moreover, it is essential for the implementation that the commitments are unambiguous and selfexecuting. This means that the implementation must not be dependent on the will of a third party. Moreover, the implementation process should be designed in such a way that the company has an incentive to properly implement the commitments. The model text for divestiture commitments for mergers as published on the DG Competition's website 5 which contains an in-built mechanism to ensure such incentive 6 should be followed as closely as possible as far as it is applicable for the commitments offered in a specific antitrust case. Contradictory or incomplete commitments may result in a failure to remove the competition concerns and can hardly be corrected at a later stage. Pursuant to Article 9(2)(b) of Regulation 1/2003, the Commission may re-open proceedings if an undertaking acts contrary to the commitments.

Other Considerations

If need be, a trustee can be appointed to assist the Commission in their implementation (monitoring and/or divestiture trustee) 7 . Furthermore, when commitments cannot be implemented without the agreement of third parties (e.g. pre-emption right of an undertaking that would not be a suitable buyer under the commitments), the undertaking should submit evidence that such agreement can be achieved at the latest when the commitments are formally submitted.

More

It is of particular importance to keep sufficient records on the discussions, taking into account in particular that the enforcement of the commitments at a later stage might require an interpretation of the commitment text, for which such records can be useful. This is all the more true for commitments which are of a behavioural nature, as they may run for many years and might require long-term monitoring.

More

The final commitments should be signed by the undertaking concerned.

Resources

See Also

References

• Information about Commitments Decisions Content in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes

[Note 1] The boundaries between both commitment types are not always entirely clear. See e.g. Commission Notice on remedies acceptable under the Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004, Official Journal C 267, 22.10.2008, p. 1-27, para. 22 et seq.
[Note 2] Case C-441/07 P Commission v Alrosa.
[Note 3] Case C-441/07 P Commission v Alrosa, para. 37-38 and 46-47.
[Note 4] See also Advocate General Kokott, Opinion of 17 September 2009 in Case C-441/07P Commission v Alrosa, paragraph 51: “voluntary commitments”.
[Note 5] http://ec.europa.eu/competition/mergers/legislation/commitments.pdf
[Note 6] The model text foresees a certain deadline for the divestiture procedure and ultimately gives to a trustee the right to divest the respective business at no minimum price if the company does not comply with this deadline. It is, therefore, in the interest of the company to divest the business in a timely manner. No specific action by the Commission is needed to accomplish the divestiture process in case the company fails to do so since the necessary steps are already foreseen in the Commitments text.
[Note 7] For further details see the Commission's model text for (merger) trustee mandates: http://ec.europa.eu/competition/mergers/legislation/trustee-mandate.pdf

Further Reading

• Information about Commitments Decisions Content in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)