On 23 November 2017, in response to a preliminary reference case brought by the Spanish Supreme Court, the European Court of Justice ("ECJ") confirmed that a national court is not precluded from examining the compatibility of practices with EU competition rules where the European Commission ("Commission") has already accepted commitments in relation to the same practice. It added that the EC preliminary assessment may be regarded as prima facie evidence of an infringement.
In 2006, the EC accepted binding commitments from Repsol, pursuant to Article 9 of Regulation 1/2003, to address competition concerns related to its long-term exclusive supply agreements with service stations. Subsequently, Gasorba brought an action against Repsol before the Spanish Courts seeking the annulment under Article 101 TFEU of one of these agreements. The Spanish Supreme Court considered that there was uncertainty as to the scope of national court's jurisdiction where the Commission had closed a case with a commitment decision and therefore referred the matter to the ECJ.
The ECJ ruled that a Commission commitment decision does not prevent a national court from assessing whether the practice concerned complies with EU competition rules and, if necessary, from finding that it infringes such rules. It also pointed out that a commitment decision does not validate the company’s conduct under Article 101 and 102 TFEU.
The outcome of ECJ's ruling was expected by many given that Regulation 1/2003 recitals expressly state that commitment decisions do not affect the powers of national courts to apply competition rules and to decide on the case. It is also consistent with the fact that Article 9 provides that the Commission only need carry out a "preliminary assessment" in order to accept commitments, without the need to establish an infringement.
However, the ECJ added that this does not mean that commitment decisions have no legal effect before national courts. The principle of sincere cooperation and the objective of effective and uniform application of EU competition law mean that national courts must take into account the preliminary assessment made by the Commission and "regard it as an indication, if not prima facie evidence, of the anticompetitive nature of the agreement".
Companies should therefore be aware that by securing commitments at EU level, they are not shielded from a later finding of infringement at national level.
Co-author: Jessica Bracker
All articles in the December edition of the Competition newsletter
CNMC fines five electric cable cartels €44.7 million
Commission fines five car safety equipment suppliers for cartel outside the EEA
ECJ rules that Commission commitments do not prevent national courts from ruling on the same practice
German Federal Cartel Office prohibits ticketing system exclusivity clauses
Hungryhouse subject to CMA's first fine for incomplete disclosure of documents in a UK merger case
Luxury, third-party platforms and hardcore restrictions; lessons from Coty
Olé, olé, olé - German Football Association eases conditions for purchase of tickets for World Cup 2018
Sainsbury's MIF(fed) as High Court dismisses damages claim against Visa in favour of alternative view of interchange fees
