Relaxing whilst doing Competition Law is not an Oxymoron

Archive for June 30th, 2010


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The Court of Justice was in a facetious mood yesterday. It’s latest joke is plain excellent.

Here’s the background: In Commission / Alrosa, the Court was asked to rule on Article 7 (Finding and termination of infringement) and 9 (Commitments) of Regulation 1/2003.

Now,  the Court’s joke goes as follows:

Those two provisions of Regulation No 1/2003, as noted in paragraph 38 above, pursue different objectives, one of them aiming to put an end to the infringement that has been found to exist and the other aiming to address the Commission’s concerns following its preliminary assessment”.

[… Laughter …]

And the upshot of this:

“47. There is therefore no reason why the measure which could possibly be imposed in the context of Article 7 of Regulation No 1/2003 should have to serve as a reference for the purpose of assessing the extent of the commitments accepted under Article 9 of the regulation, or why anything going beyond that measure should automatically be regarded as disproportionate. Even though decisions adopted under each of those provisions are in either case subject to the principle of proportionality, the application of that principle none the less differs according to which of those provisions is concerned.

48. Undertakings which offer commitments on the basis of Article 9 of Regulation No 1/2003 consciously accept that the concessions they make may go beyond what the Commission could itself impose on them in a decision adopted under Article 7 of the regulation after a thorough examination. On the other hand, the closure of the infringement proceedings brought against those undertakings allows them to avoid a finding of an infringement of competition law and a possible fine”.

On this later §, read again recital 13 of Regulation 1, which says that “Commitment decisions are not appropriate in cases where the Commission intends to impose a fine“.

(Image possibly subject to copyrights: source here)

Written by Nicolas Petit

30 June 2010 at 7:03 pm