Under the EU commitment procedure set out in Article 9 of Regulation 1/2003, companies may offer commitments to address the competition concerns identified by the European Commission ("Commission"). If such commitments are considered satisfactory, the Commission may close the case without any finding of infringement or the imposition of any fine. The Commission then adopts a commitments decision which is binding on the undertaking concerned.
The underlying case relates to a 2006 decision adopted by the Commission, in which it declared the commitments made by Repsol binding and brought antitrust proceedings against Repsol to an end. The Commission had raised concerns as to the compatibility with Article 101 TFEU of long-term supply agreements concluded between Repsol and its service station tenants in Spain. In response, Repsol had offered several commitments to address these concerns, including that (i) it would not conclude new long-term exclusivity agreements; (ii) it would offer service station tenants a financial incentive to prematurely terminate their existing long-term supply agreements with Repsol; and (iii) it would not buy, for a certain period of time, any independent service station that it did not already supply.
In 2008, a service station tenant petitioned the Spanish courts challenging under Article 101 TFEU the long-term supply agreement it had concluded with Repsol. The case eventually reached the Spanish Supreme Court, which stayed proceedings and requested guidance from the ECJ on the extent of the binding nature before national courts of EU commitments decisions adopted by the Commission.
In its judgment, the ECJ first recalled the fundamental importance of the uniform application of EU competition law, which requires national courts and competition authorities not to take decisions contrary to those adopted by the Commission in proceedings under Regulation 1/2003.
The ECJ also noted that decisions adopted by the Commission under Article 9(1) of Regulation 1/2003 have the effect of making commitments binding upon an undertaking to address the competition law concerns identified by the Commission in its preliminary assessment. At the same time, the commitments decision does not certify whether the practice complies with Article 101 TFEU and, therefore, the adoption of a commitments decision cannot create a legitimate expectation for the undertaking concerned as to whether its conduct complies with competition law.
Therefore, the ECJ concluded that national courts cannot be precluded from examining whether an agreement, which is the subject of a commitments decision, infringes competition law rules and, if necessary, find that this agreement is void under Article 101(2) TFEU.
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