European Union: Will The European Commission Reduce Use Of The Commitment Procedure In Dominance Cases?

Eleven years after its entry into force, the EU commitment procedure still appears as a formidable success. Recent developments nonetheless show that the tide may be turning. This is true even in cases concerning potential abuses of a dominant position, for which the commitment procedure had de facto become the standard procedure. In fact, even in abuse of dominance cases, as illustrated by recent European Commission decisions, the commitment procedure may now appear as a less obvious choice for the Commission and investigated parties.

"Commitment procedure" or "standard procedure"?

The main advantages of the commitment procedure for investigated undertakings are well known. The case is closed without any finding of infringement and no fine is imposed. In the end commitments can of course be burdensome, but they are the result of a negotiation and may therefore also reflect concessions made by the Commission. In addition, commitments are generally quite detailed. As a result, they provide more helpful guidance for the future than a decision that prohibits a practice without any indication of what the permissible course of action would be. The definition of a (relatively) safe harbor in a commitment decision can be a decisive upside in an area of EU law which is as complex, uncertain and unstable as the law on Article 102 TFEU (i.e., the provision of the Treaty on the Functioning of the European Union that is aimed at preventing undertakings that hold a dominant position in a market from abusing that position.). Finally, the judicial risk is limited: while complainants or other interested third parties can appeal a commitment decision, it results from the case law of the Court of Justice, and in particular from the Alrosa judgment, that the Commission enjoys broad discretion when it determines whether proposed commitments should be accepted and made binding.

Obviously, the commitment procedure also results in significant procedural gains for the Commission, as it can adopt simplified decisions without necessarily issuing a statement of objections. In addition, since the investigated party accepts the commitments, this reduces, when it does not suppress, the litigation risk before the EU Courts.

All these upsides quickly ensured the success of the commitment procedure. Between May 2004 (the entry into force of the commitment procedure) and December 2013, no less than 77% of the Article 102 TFEU proceedings closed by the Commission led to commitments, with four years (2008, 2010, 2012 and 2013) showing a 100% rate. In practice, what was believed to be an alternative procedure became the most common way of closing abuse of dominance cases.

A tide that may be turning

The year 2014 appears as a potential turning point for the application of the commitment procedure. In 2014 the European Commission adopted five decisions closing proceedings in an Article 102 TFEU case. Only one of these was a commitment decision (Case AT.39939, Samsung, a standard essential patent injunction case), whereas the four others found a formal infringement (Case AT.39984, OPCOM/Romanian Power exchange, a discrimination case; Case AT.39985, Motorola, a standard essential patent injunction case; Case COMP/AT.39612, Perindopril (Servier), a pay-for-delay case, and Case COMP/AT.39523, Slovak Telekom, a refusal to supply and margin squeeze case).

It should not come as a surprise that the European Commission did not apply a commitment procedure to practices of a dominant undertaking which, in its view, were coupled with cartel-like behavior, such as those sanctioned in Perindopril (Servier). It must also be noted that in Motorola, even though the Commission found a formal infringement, it refrained from imposing a fine on account of the novelty of the case and diverging conclusions of the national courts on the issue.

The fact remains that, in stark contrast with the previous years, 80% of the decisions closing Article 102 TFEU proceedings in 2014 did find a formal infringement. In fact, 40% of the decisions finding an infringement of Article 102 TFEU since May 2004 were adopted in 2014.

A new light on some limits of the commitment procedure

The year 2014 may well be an outlier, but it may also be the sign of a relative decline of the commitment procedure. In the future this potential trend might be strengthened by the Google case, in which the European Commission decided to reject the commitments submitted by Google and instead to issue a statement of objections. Admittedly, the Google proceedings may still be closed through a commitment procedure, since commitments may be submitted even after a formal statement of objections has been issued. Moreover, the Google case is special due to its political context, since the European Parliament exerted pressure on the Commission to take a harsher stance than the one favored by former Commissioner Almunia. However, at the very least the Google case shows that in complex cases the procedural gains of the commitment procedure can be overestimated. It took the European Commission more than four years to send a statement of objections in this case, after it carried out two market tests and rejected no less than three different versions of proposed commitments.

Beyond this, one cannot exclude that the Commission has now become more sensitive to a limit of the commitment procedure which, precisely due to its success, appears quite vividly: commitment decisions have poor precedential value, as they do not make any legal findings on liability and normally escape litigation before the EU Courts. This may result in a significant depletion of the case law on Article 102 TFEU that cannot be compensated by preliminary references from national courts to the European Court of Justice. In 2013 and 2014, national courts sent a total of only 14 preliminary references concerning competition law matters to the Court of Justice. Only three of these references concerned the law on abuses of a dominant position. This falls short of guaranteeing a steady pipeline of Article 102 TFEU cases before the Court of Justice.

Finally, the relative decline of the commitment procedure might reveal that some investigated parties find the cost of the commitment procedure too expensive. This cost obviously includes the concessions needed to obtain a commitment decision, as well as a waiver (that the investigated party must accept in practice) of the right to appeal the decision before the EU courts. But it also includes the cost of monitoring compliance with commitments, which may be very burdensome. In March 2013 Microsoft was imposed a € 561 million fine due to its breach of a commitment given to the Commission, even though Microsoft declared it took full responsibility for the incident, which it had blamed on a technical error Jones Day Antitrust Alert of March 2013).

Practical significance

There is no doubt that the commitment procedure remains a very useful tool in EU competition law proceedings. It nonetheless becomes increasingly clear that the standard procedure still has a significant role to play in Article 102 TFEU cases.

This may change the way dominant undertakings apprehend the antitrust risk, as their margin of maneuver increases with the use of the commitment procedure. In a world where the commitment procedure is systematically applied, a dominant company facing unclear legal principles – such as those that populate the case law on Article 102 TFEU – can trust that, should it take a risk, it will escape a finding of infringement and the imposition of a fine by the Commission, provided that it is ready to change its behavior in the future. By contrast, in a world where the commitment procedure is less systematically applied, a dominant company that needs to weigh the commercial benefits of a practice against its antitrust risk faces a more complex decision.

Finally, a more balanced use of the commitment procedure might result in increased litigation before the EU courts. Paradoxically, maintaining such a litigation stream is necessary to ensure that the commitment procedure remains a genuine option: it is only if the EU courts can show that they exercise an in-depth review of the Commission's decisions finding an infringement that the commitments submitted by parties in other cases will remain voluntary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions