Morningstar v Commission – Setting the Bar High for Third Parties Challenging EU Commitment Decisions

October 2016

CPI Europe Column edited by Anna Tzanaki (Competition Policy International) & Juan Delgado (Global Economics Group) presents:

Morningstar v Commission – Setting the Bar High for Third Parties Challenging EU Commitment Decisions by Amaryllis Müller (Freshfields Bruckhaus Deringer LLP)

Introduction

On 15 September 2016, the General Court upheld a Commission decision making commitments binding on Thomson Reuters under Article 9 of Regulation 1/2003. Morningstar v Commission is only the second case in which EU Courts ruled on the validity of commitments adopted under a so-called “Article 9 procedure” and marks the first time ever for an EU Court to rule on the allegation that commitments are insufficient to address the Commission’s concerns. By stressing the Commission’s broad margin of discretion, the General Court set the bar high for unsatisfied third parties to appeal commitment decisions.

Commitment decisions are rarely appealed

Article 9 of Regulation 1/2003 allows the Commission to end proceedings brought under Articles 101 or 102 TFEU by making commitments binding on the company under scrutiny. Such commitments are offered by the companies under investigation to address the concerns expressed in the Commission’s preliminary assessment in order to avoid the adoption of a formal infringement decision under Article 7 of Regulation 1/2003. The voluntary nature of the commitment process explains the limited number of cases brought under appeal