14 December 2017

Beware of commitment: Commission tying the knot may still leave you exposed

The European Court of Justice recently clarified that when an undertaking offers binding commitments to the Commission to meet antitrust concerns, national courts are not prevented from applying the EU competition rules to the same case. Companies should therefore keep in mind that a commitment decision only prevents the Commission from taking further action against them without the Commission having to establish whether there is an infringement. A commitment decision does not let companies off the hook completely; competition investigations by national courts and authorities could still be on the horizon. Also, companies should consider possible exposure to civil damages claims before offering commitments, as the Court of Justice has indicated that national courts are required to review the Commission’s preliminary assessment. Additionally, national courts may even have to regard the preliminary assessment as an indication, if not prima facie evidence, of the anti-competitive nature of the arrangement assessed by the Commission.