On 23 November 2017, the European Court of Justice ruled that the European Commission’s decisions on binding commitments do not to prevent member states’ national courts from subsequently deciding that an agreement which has been subject to the European Commission’s commitment is contrary to article 101 of the TEUF, which prohibits anti-competitive agreements.

The ruling was delivered after the Supreme Court in Spain, the Tribunal Supremo, had asked the ECJ to assess whether a national court may investigate and, in that case, determine that an agreement between companies is contrary to article 101 of the TEUF despite the fact that the European Commission has given the companies a binding commitment in advance stating the opposite.

According to the ECJ, the European Commission’s commitment cannot create a justified expectation in the involved companies that their conduct is in accordance with article 101 of the TEUF as the European Commission only makes a preliminary assessment of the competition situation. The European Commission’s decision to give a commitment therefore only reflects the European Commission’s assessment of the relevant competition situation.

On this basis, it cannot be ruled out that a national court will subsequently find that an agreement is anti-competitive contrary to article 101 of the TEUF.

But the national court cannot completely disregard the European Commission’s decision on commitment. It appears from the principle on loyal cooperation and the object of an effective and uniform application of EU competition law that national courts must take into consideration the European Commission’s decision on commitment when assessing whether an agreement is anti-competitive under article 101 of the TEUF.


Andreas Christensen

Partner (H)