Opinion of the Advocate General — ECLI:EU:C:2020:355
Date: 2020-05-07
Language of the case: French
Subject matter: Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - successful
Origin: France

summary assessment, is made of the conduct adopted in the light of Article 101(3) TFEU). Second, the alteration of that conduct brought about by the commitments could undermine the very requirements flowing from Article 101(3) TFEU, the fulfilment of which is so important under primary law that they take precedence over a preliminary assessment carried out in accordance with Article 101(1) TFEU. 89. Moreover, it is only if the first and third paragraphs of Article 101 TFEU are considered together that it is possible to identify, even if only in the light of a summary analysis, a ‘potential infringement’ justifying the acceptance of commitments. Otherwise, the Commission will be carrying out an analysis that is missing a part which is regarded, by Article 101 TFEU, as essential in order for an infringement to be found. Admittedly, as I have reiterated, in proceedings for the acceptance of commitments there can be no finding of an infringement, but it is necessary that there should at least be a ‘potential infringement’. Given that Article 101 TFEU imposes two stages in the identification of an infringement of the competition rules, outlined in the first and third paragraphs of Article 101 TFEU respectively, then even in order to allege a ‘potential infringement’ the analysis must touch upon both of those stages, even if, it must be stressed, it will be a much less exhaustive analysis and the reasons given will be far more succinct than when proceeding to a finding of an infringement. 90. Lastly, it must be observed that paragraphs 1 and 3 of Article 101 TFEU also serve to outline a method of apportioning the burden of proof. (24) In accordance with paragraph 1, the Commission identifies a possible infringement and defines a theory of anticompetitive harm, and the private individual responds to that and attempts to rebut the Commission’s allegations by arguing the fulfilment of the conditions referred to in paragraph 3 of Article 101 TFEU. It is difficult to see why that logic should be upset when the Commission decides to follow the commitments route. The parties to the proceedings must, even in the initial phase, fully enjoy their rights of defence, and by exercising those rights not only do they protect their own interests but, if the arguments they make by reference to Article 101(3) TFEU are well founded, they also help to ensure that conduct which in actual fact promotes the interests underlying Article 101(3) TFEU, which are regarded by the FEU Treaty as overriding interests, is not prohibited. 91. Therefore, I consider that, even in proceedings relating to the acceptance of commitments proposed by an undertaking, the Commission must attend to both of the phases contemplated by paragraphs 1 and 3 of Article 101 TFEU and that it therefore cannot dispense with considering, even if only summarily, given the nature of the proceedings, the arguments raised by the parties or by third-party interveners regarding the fulfilment of the conditions laid down in Article 101(3) TFEU. 92. Applying the principles which I have expressed to the present case, I would observe that the General Court’s simple assertion, with which I have taken issue, suggesting that Article 101(3) TFEU is generally inapplicable in proceedings relating to commitments, might not affect the validity of its judgment on this point because, in actual fact, both the Commission and the General Court provided succinct reasoning, consistent with the nature of proceedings concerning the acceptance of commitments, that rules out the failure to state reasons which is the subject of one of the grounds of appeal. 93. The reasoning set out by the General Court in paragraphs 53 to 57 and 67 to 72 of the judgment under appeal, together with the reasoning underlying the Commission’s decision, in paragraphs 40 to 44 and 50 to 53, in fact could support the conclusion that the relevant clauses ‘do not satisfy at least one of the cumulative conditions laid down in Article 101(3) TFEU, namely the condition that the agreement in question does not impose on the undertakings concerned restrictions which are not indispensable for the protection of [the intellectual property] rights’ (paragraph 67 of the judgment under appeal). 94. Indeed, Article 101(3) TFEU enables the provisions of Article 101(1) TFEU to be declared inapplicable where an agreement between undertakings contributes to ‘improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit’, provided that ‘restrictions which are not indispensable to the attainment of these objectives’ are not imposed on the undertakings concerned. 95. The relevant clauses, in the opinion of both the General Court and the Commission, impose restrictions that ‘go beyond what is necessary for the production and distribution of audiovisual works that require protection of intellectual property rights’ (25) (paragraph 67 of the judgment under appeal), even for the purposes of protecting cultural diversity. 96. Indeed, absolute territorial protection ‘manifestly goes beyond what is indispensable for the improvement of … production or distribution or the promotion of technical or economic progress required by Article 101(3) TFEU, as shown by the prohibition, intended by the parties to the agreement concerned, of any cross-border supply of television broadcast services, even [of] works for which a licence was granted by Paramount itself and which were broadcast on the territory of a Member State (see, to that effect, judgment of 8 June 1982, Nungesser and Eisele v Commission, 258/78, EU:C:1982:211, paragraph 77)’ (paragraph 68 of the judgment under appeal). Such partitioning of the market and the variation in prices to which it gives rise are in fact irreconcilable with the fundamental aim of the Treaty, which is the completion of the internal market (paragraphs 43 and 44 of the contested decision and paragraph 57 of the judgment under appeal). 97. In the present case, the General Court stated sufficiently its reasoning to the effect that there is an alternative for the funding of cinematic production in EEA countries – and thus also for the protection, inter alia, of the interests of cultural diversity – to the partitioning of markets by means of absolute territorial exclusivity: ‘any reduction in the applicant’s revenues from customers in France may be offset by the fact that, owing to the implementation of the commitments made binding under the contested decision, the applicant is now free to approach a customer base situated throughout the EEA and not only in France’ (paragraph 69 of the judgment under appeal). 98. For that reason, ‘even if the applicant devotes part of its revenues to the funding of audiovisual products which require specific support, the normal play of competition, now open on an EEA scale, provides it with opportunities which the relevant clauses denied it as long as Paramount intended to require that they be respected’ (paragraph 57 of the judgment under appeal). (c) Interim conclusion 99. In conclusion on this point, I consider that the complaint raised in the third ground of appeal, alleging insufficient reasoning and an incomplete examination of the facts, need not be upheld, inter alia, because of the fact that the requirement that the General Court give reasons for its decisions cannot be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by a party and that, rather, it is regarded as sufficient if the statement of the reasons on which a judgment is based clearly and unequivocally discloses the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review. (26) The fact that the General Court, on the merits, arrived at a different conclusion from the appellant cannot in itself vitiate the judgment for failure to state reasons. (27) 100. The General Court did provide sufficient reasons in relation to the specific legal and economic context of the conduct at issue, and drew conclusions different from those advanced by the appellant but which do not appear to be manifestly incorrect. 101. In so far as concerns the applicability of the exceptions provided for by Article 101(3) TFEU to proceedings under Article 9 of Regulation No 1/2003, although the General Court was mistaken to assert that they are generally inapplicable, the contested decision and the judgment under appeal contain sufficient arguments for those exceptions to be considered as not applying in the present case. For that reasons, I suggest that the Court dismiss the third ground of appeal as unfounded. B. The fourth ground of appeal in which the appellant alleges that the General Court misinterpreted Article 9 of Regulation No 1/2003 and point 128 of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (28) (‘the Commission’s Best Practices’) 1. Arguments of the parties 102. Canal +, supported by the French Republic, asserts that, in ruling (in paragraphs 118 and 119 of the judgment under appeal) that, by their nature, the relevant clauses are aimed at partitioning the national markets of the whole of the EEA, and that their legal and economic context does not permit a finding that they are not capable of harming competition, and that no other commitments offered by Paramount, with less pronounced effects vis-à-vis Canal +, would have been adequate, the General Court misinterpreted Article 9 of Regulation No 1/2003 and point 128 of the Commission’s Best Practices. 103. Canal +, along with the French Republic, observes, in the first place, that, by accepting Paramount’s commitments relating to all agreements concluded with broadcasters in the EEA, while the competition concerns raised in the Commission’s preliminary assessment related only to exclusive rights in the United Kingdom and Ireland, the Commission failed to take account of the particular features of other markets, in particular the French market, in which the regulatory and funding system is distinguished by the fact that the funding of audiovisual creations is primarily provided by broadcasters like Canal +. 104. By confirming the Commission’s approach, the General Court breached the principle of proportionality and observance of the rights of third parties, as referred to in the judgment of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377, paragraph 41). Indeed, the General Court erred in law in concluding, in paragraph 106 of the judgment under appeal, that the Commission had acted within the limits of the powers conferred on it by Article 9 of Regulation No 1/2003 and in pursuit of the objectives of that provision (namely procedural economy and efficiency), without affecting the contractual or procedural rights of Canal + beyond what was necessary in order to achieve those objectives. 105. The French Republic adds that the fact that no other commitments were offered that were capable of adequately responding to the competition concerns identified by the Commission is not a sufficient basis for asserting that the interests of third parties were actually considered. Indeed, given that the commitments are the outcome of negotiations exclusively between the Commission and the undertaking concerned, it is hard to imagine that the interests of third parties could have been taken into consideration in the context of proceedings in which the commitments given would have been compared solely with other commitments possibly suggested by the undertaking concerned. 106. UPC emphasises that the contested decision indeed affects the interests of all players in the film industry. It observes in fact that, in 2018, free television channels and pay-TV channels funded 97.8% of French-origin films having a budget of EUR 4 million or more and 77.2% of films with a guaranteed budget of between EUR 1 million and EUR 4 million. Canal + pre-purchased 113 French-origin films and 93.9% of French-origin films costing more than EUR 7 million. In its analysis, the General Court did not take those circumstances into account, or the fact that the contested decision, if upheld, could completely upset the contractual standards of all the players in the market. 107. In the second place, Canal + maintains that, in accordance with point 128 of the Commission’s Best Practices and footnote 76 thereto, commitments must be unambiguous and self-executing and their implementation must not be dependent on the will of a third party which is not bound by them. 108. The General Court breached that principle by asserting, in paragraph 104 of the judgment under appeal, that the Commission’s decision does not constitute an interference with the contractual freedom of Canal +, since Canal + could bring an action before the national court in order to establish the compatibility of the relevant clauses with Article 101(1) TFEU and to draw, vis-à-vis Paramount, the inferences prescribed by national law. Moreover, by asserting, in paragraph 103 of the judgment under appeal, that it would be for the Commission to reopen the investigation if the national court should require Paramount to breach its obligations under the commitments, the General Court expressly acknowledged that implementation of the commitments is dependent on the will of Canal +, yet it failed to draw all the legal inferences from that conclusion. 109. Canal +, along with the French Republic, maintains, in the third place, that by asserting, in paragraph 100 of the judgment under appeal, that the contested decision could no more than influence the findings of the national court because it merely contains a preliminary assessment, the General Court seriously infringed the rights of third parties. The contested decision in fact deprives Canal + of its contractual freedom, since it will in practice be impossible for it to obtain a ruling of the national court contradicting the Commission and acknowledging the validity of the clauses at issue. In this connection, it is clear from the judgment of 23 November 2017, Gasorba and Others (C‑547/16, EU:C:2017:891, paragraphs 28 and 29), that national courts cannot overlook decisions taken on the basis of Article 9(1) of Regulation No 1/2003 and must take the Commission’s preliminary assessment into account and regard it as an indication, or even as prima facieevidence, of the anticompetitive nature of the agreement in question. 110. The French Republic adds that the effect of a decision such as the contested decision on the findings of the national court is intensified by the commitments negotiated with other multinationals in the sector in question, making it more likely that subsequent commitments will form the standard from which it will be ever more difficult for the national court to depart. Moreover, the fact that the Commission would necessarily reopen an investigation, pursuant to Article 9(2)(b) of Regulation No 1/2003, in the event that the national court finds that the agreement in question does not infringe Article 101(1) TFEU, could dissuade the national court from disputing the Commission’s preliminary assessment. 111. The Commission, supported by the BEUC, maintains that the General Court was correct in asserting, in paragraphs 43 to 58 and 118 of the judgment under appeal, that Paramount’s commitments addressed competition concerns relating to the whole of the EEA. The relevant clauses in fact constituted additional obligations aimed at subdividing the national markets throughout the EEA, prohibiting or limiting the passive cross-border sale by Sky of television distribution services to customers residing in the EEA but outside the United Kingdom and Ireland, as well as sales by broadcasters established in the EEA but outside the United Kingdom and Ireland to consumers residing in the United Kingdom and Ireland. The commitments offered by Paramount therefore adequately answer the competition concerns expressed in the statement of objections and Paramount did not offer less onerous commitments that answered those concerns adequately. 112. The Commission, supported by the BEUC, also considers that the General Court was correct in stating, in paragraphs 83 to 108 of the judgment under appeal, that the implementation of Paramount’s commitments is not dependent on the will of third parties, including Canal +. Indeed, in offering those commitments, Paramount was exercising its contractual freedom not to be bound by certain contractual clauses, and that decision was not dependent on the will of third parties. Moreover, the Commission’s acceptance of the commitments does not deprive Canal + of the possibility of having recourse to the national court in order to protect its own interests in its contractual relations with Paramount. If a national court decides that the relevant clauses do not infringe Article 101(1) TFEU, or that they fulfil the conditions referred to in Article 101(3) TFEU, it will be for that court to determine whether the outcome of the proceedings before it can induce Paramount to breach the commitments entered into as a result of the contested decision. To avoid the outcome of such proceedings causing Paramount to breach its commitments, the national court could refuse to order the performance of the relevant clauses, while at the same time ordering, in accordance with national law, equivalent performance on Paramount’s part and the payment of damages. The General Court considered that solution in paragraph 103 of the judgment under appeal. 113. The Commission, along with the BEUC, asserts, in the third place, that the General Court was right to consider, in paragraph 102 of the judgment under appeal, that Canal + might be able to obtain a decision of the national court conflicting with the Commission’s decision and acknowledging the lawfulness of the clauses at issue. It is clear from paragraph 29 of the judgment in Gasorba and Others, cited above, that a national court must merely take into consideration the Commission’s preliminary assessment as expressed in the decision at issue and regard it as an indication, or even as prima facieevidence, of the anticompetitive nature of the clauses at issue. 114. The BEUC maintains that the fourth ground of appeal is inadmissible, in that Canal + is attempting to call into question the findings and assessments made by the General Court in the examination of the third and second grounds, essentially repeating the same arguments as it raised at first instance. 2. Assessment (a) Breach of the principle of proportionality and observance of the rights of third parties 115. In the fourth ground of appeal, the criticisms levelled against the judgment of the General Court relate essentially to an alleged error of law in the Court’s stating that the Commission did not breach the principle of proportionality by making the commitments offered by Paramount binding throughout the EEA, while the competition concerns which the institution expressed in its preliminary analysis only concerned the exclusive territorial rights in the United Kingdom and Ireland, and in its stating that that the Commission’s decision would not undermine the rights of third parties, given that they could in any event obtain judicial protection before the national courts in relation to the relevant clauses. 116. The delicate question which the Court is asked to resolve therefore concerns the possibility that the commitments proposed, and accepted by the Commission, might have consequences for the contractual rights of third parties. That question turns on the delicate balance between contractual freedoms and the regulatory principles of, and objectives enshrined in, the Treaties of the European Union, particularly those relating to the protection of competition. It is well known that freedom of contract is one expression of the freedom to conduct a business, which is guaranteed by Article 16 of the Charter of Fundamental Rights of the European Union (29) and is acknowledged in the constitutional traditions common to the Member States. However, as has been emphasised in the case-law of the Court, freedom to conduct a business is not an absolute right, but must be considered in relation to its social function. (30) Accordingly, the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of that freedom in the public interest. (31) 117. It is into that context, which I have only very briefly described, that fall some of the limitations on the contractual freedom of the parties that are at issue in this case, such as the limitation arising from Paramount’s obligation not to include in any new licence agreements clauses which create absolute barriers to intra-EU competition and frustrate the objective of establishing the single market, referred to in Article 3(3) TEU, or the principle asserted in the case-law and recalled by the General Court in accordance with which the rules on copyright guarantee only remuneration that is ‘reasonable’ in relation to the economic value of the service provided and clauses which provide for a higher level of remuneration might not be permissible if they are premised on the national partitioning of markets resulting from the absolute territorial protection of national licensees. 118. It would not be a novel occurrence for a decision in a competition matter to have an effect on existing contractual relations. However, the peculiarity of the case under consideration is that, with the objective of protecting competition in the internal market, the Commission has accepted commitments proposed by an undertaking that affect the contractual relations between that undertaking and a party that was merely a third party in the proceedings conducted pursuant to Article 9 of Regulation No 1/2003. 119. Can a decision to accept commitments go as far as to compel an undertaking not to perform a contract with a third party? Can the objective of protecting competition justify so significant a sacrifice of the freedom of contract of a third party? These are questions which concern the application of the principle of proportionality to decisions on the acceptance of commitments. 120. The Commission, relying on the judgment of 29 June 2010, Commission v Alrosa (C-441/07 P, EU:C:2010:377), in particular paragraph 41 thereof, maintains a particularly narrow interpretation of the role to be played by the principle of proportionality in this area. It alleges that the institution must confine itself to only verifying that the commitments at issue address the competition concerns which it has made known to the undertakings concerned, and that the latter have not offered less onerous commitments that address those concerns equally adequately. The General Court accepted that view and acknowledged that the Commission had indeed carried out the necessary checks. 121. However, the judgment in Commission v Alrosa did not limit the application of the principle of proportionality to the checks just mentioned, for immediately after referring to the requirement for those matters to be assessed by the Commission, it carefully noted that, ‘when carrying out that assessment, the Commission must, however, take into consideration the interests of third parties’. (32) 122. Thus, the principle of proportionality applies in two directions: on the one hand, it relates to the suitability of the commitments to addressing the Commission’s concerns and to the fact that the undertaking has not offered commitments which, while still addressing the Commission’s concerns, are less onerous. On the other hand, it applies to the interests of third parties in some way affected by the acceptance of the commitments. In this way the Court acknowledges that, in practice, there may be cases in which a decision relating to commitments also has an effect on the interests of third parties other than the undertakings subject to the Commission’s investigation. But, in such cases, in order for the decision to be lawful, it must not fall foul of an assessment carried out in the light of the principle of proportionality. 123. The intensity of the review that is carried out in the light of the principle of proportionality may certainly vary depending on the type of proceedings involved and, in the case of an assessment of the remedies proposed by an undertaking in proceedings that do not entail a finding of infringement, the extent to which the principle of proportionality applies is, as we have seen, limited. (33) However, when the commitments must be assessed not in terms of their suitability to addressing the Commission’s concerns, but in terms of their effect on the interests of third parties, the principle then at least requires that the rights which those third parties enjoy and which are important under primary EU law are not entirely sacrificed or, in any event, rendered nugatory. 124. That conclusion is dictated by the very essence of the principle of proportionality, which, as a general principle of EU law ‘requires that acts adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; [and that,] where there is a choice between several appropriate measures, recourse must be had to the least onerous, and [that] the disadvantages caused must not be disproportionate to the aims pursued’ (34) and which is ‘a criterion for the lawfulness of any act by the Community institutions, including decisions taken by the Commission in its capacity as the competition authority’. (35) 125. Since one effect of the decision accepting the commitments is that the undertaking that offered them must not fulfil the contractual obligations which it entered into vis-à-vis a third party and which are an essential component of the economic equilibrium that the contracting parties have, each in the exercise of its freedom of contract, established, so grave a sacrifice of the third party’s freedom of contract does not seem to be justifiable in the light of the principle of proportionality. 126. In order to escape that conclusion, the Commission and the General Court pointed to the right of the third party (Canal +) to bring legal proceedings against the undertaking which offered the commitments (Paramount) in order to establish its liability under the contract and to obtain damages. Indeed, referring back to the judgment in Commission v Alrosa, the General Court observed that the fact that the individual commitments offered by an undertaking have been made binding by the Commission does not mean that other undertakings are deprived of the possibility of protecting the rights they may have in connection with their relations with that undertaking. (36) Applying that point of principle, the national court could hold that the relevant clauses infringe Article 101(1) TFEU or that they satisfy the conditions referred to in Article 101(3) TFEU, and it could also assess the merits of the claim brought before it, in so far as Article 101 TFEU did not preclude the application of the relevant clauses (paragraphs 100, 101 and 102 of the judgment under appeal). 127. The weakness in that argument, highlighted in the appeal brought by Canal +, is that the decision accepting the commitments will in any event have an effect on the court hearing the third-party undertaking, because it imposes a significant legal limit on the national court’s discretion. Of course, a decision concerning commitments adopted on the basis of Article 9(1) of Regulation No 1/2003 does not prevent a national court from assessing the practice addressed in the decision differently from the Commission. Nevertheless, ‘national courts cannot overlook that type of decision. Such acts are, in any event, in the nature of a decision. In addition, both the principle of sincere cooperation laid down in Article 4(3) TEU and the objective of applying EU competition law effectively and uniformly require the national court to take into account the preliminary assessment carried out by the Commission and regard it as an indication, if not prima facie evidence, of the anticompetitive nature of the agreement at issue in the light of Article 101(1) TFEU’. (37) 128. The case-law I have cited is particularly consistent with the requirement underlying Regulation No 1/2003 to ensure the uniform application of EU competition law in a system of decentralised enforcement. It should be remembered in this connection that, ‘in order to ensure compliance with the principles of legal certainty and the uniform application of the Community competition rules in a system of parallel powers, conflicting decisions must be avoided. It is therefore necessary to clarify, in accordance with the case-law of the Court of Justice, the effects of Commission decisions and proceedings on courts and competition authorities of the Member States’. (38) 129. If a Commission decision adopted on the basis of the oft-cited Article 9 did not compel national courts to regard such a decision as prima facieevidence, there would be a dangerous potential for significant divergence in the application of EU competition law across the Member States, placing in jeopardy the system of decentralised enforcement introduced by Regulation No 1/2003. 130. In that context, the ability of a third-party undertaking such as Canal + to win its arguments before a national court and succeed in its claim for damages against Paramount is significantly weakened, since it will be necessary to rebut the presumption that the relevant clauses are unlawful. In short, in order to attain the objective of protecting competition by means of recourse to a procedure that is markedly simplified and therefore offers fewer guarantees of protection by way of the entitlement of parties having an interest in the decision to participate in the proceedings, an excessive sacrifice of the freedom of contract of third parties has been made. 131. Nor is it a valid objection to that conclusion to say that the sacrifice imposed on the freedom of contract of third parties was necessary in order to safeguard competition, or that the Commission was not able to alter the content of the commitments, which were a unilateral act on the part of the undertaking. Suffice it to observe in this connection that the Commission had other means, more suited to the characteristics of the case at hand, of defending the public interest protected by Article 101(1) TFEU. Indeed, it could have rejected the commitments on the ground that they were at odds with the principle of proportionality and conduct proceedings under Article 7 of Regulation No 1/2003 in order to establish or rule out the existence of an infringement. (39) 132. Finally, it should be observed that, as Canal + effectively submitted at the hearing, the solution proposed by the General Court would ultimately result in jeopardising the functionality and efficiency of the mechanism for protecting competition by means of decisions accepting commitments. An undertaking that gave certain commitments that were subsequently rendered binding by the Commission would in fact be exposed to a twofold peril that would seriously undermine legal certainty and the equilibrium of the system: the possibility of incurring contractual liability in national courts in various countries of the European Union and the possibility, even more threatening to the system, of the Commission’s reopening the proceedings (40) in the event that a national court compelled the undertaking to breach a commitment rendered binding. (b) Interim conclusion 133. It follows from the foregoing that, in accepting Paramount’s commitments, the Commission failed to take adequate account of the interests of third parties, which in this case were particularly proximate by reason of the agreements that had already been concluded between Paramount and third parties, including the present appellant, and thus breached the principle of proportionality. The General Court erred in law in finding the Commission’s decision free from error on this point. Therefore, having regard to this specific aspect, I suggest that the Court should uphold the fourth ground of appeal. V. Conclusion 134. On the basis of all the foregoing considerations, I suggest that the Court dismiss as unfounded the third ground of appeal and, having regard to the specific aspect I have mentioned, uphold the fourth ground of appeal. 1 Original language: Italian. 2 OJ 2003 L 1, p. 1. 3 OJ 2004 L 123, p. 18. 4 Decision of 26 July 2016 in Case AT.40023 – Cross-border access to pay-TV. 5 Order of 13 July 2017, Groupe Canal + v Commission, T‑873/16, not published, EU:T:2017:556. 6 Judgment of 12 December 2018, Groupe Canal + v Commission, T‑873/16, EU:T:2018:904. 7 OJ 2011 C 308, p. 6. 8 The impact of cross-border access to audiovisual content on EU consumers, produced by Canal +. 9 See, most recently, Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC (OJ 2018 L 601, p. 1). 10 See the Commission’s defence, which states, in paragraph 11 thereof, that ‘the contested decision does not relate to the “end” of “geo-blocking” in the field of audiovisual “services” or “audiovisual content” (paragraphs 19, 20 and 23 of the appeal), but merely to contractual restrictions relating to passive sales outside the territory covered by the licence granted by Paramount to Sky’. 11 See, most recently, judgment of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377, paragraph 40 et seq.). 12 Judgment of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377, paragraph 40). 13 Judgment of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377, paragraph 41). 14 In her Opinion in Commission v Alrosa (C‑441/07 P, EU:C:2009:555, point 51), Advocate General Kokott makes the valid observation that, by contrast with proceedings under Article 9 of Regulation No 1/2003, in which the Commission relies on the voluntary commitments of the parties, ‘in the context of a decision under Article 7 … it would possibly have to identify remedies itself, which would require it to undertake much more extensive and lengthy investigations and also a fuller assessment of the facts’. 15 Judgment of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377, paragraph 48). 16 The principle of legal certainty, which is a general principle of law, as stated in the judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530), in paragraph 75, has as its corollary ‘the principle of protection of legitimate expectations and requires, first, that rules of law must be clear and precise and, second, that their application must be foreseeable by those subject to them’; see judgment of 11 September 2019, Călin (C‑676/17, EU:C:2019:700, paragraph 50 and the case-law cited). See, also, to that effect, judgment of 19 December 2019, GRDF (C‑236/18, EU:C:2019:1120, paragraph 42). 17 Judgment of 11 September 2014, CB v Commission (C‑67/13 P, EU:C:2014:2204, paragraph 55). 18 Judgment of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph 82). 19 Judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631), in which the Court stated that ‘an agreement which might tend to restore the divisions between national markets is liable to frustrate the Treaty’s objective of achieving the integration of those markets through the establishment of a single market’ (paragraph 139) and ‘that case-law is fully applicable to the field of the cross-border provision of broadcasting services’ (paragraph 140). 20 That approach was first adopted by the Court in its ruling in Consten Grunding, according to which the assignment of a registered trade mark was one of the means of conferring territorial protection on a distributor; see judgment of 13 July 1966, Consten and Grundig v Commission (56/64 and 58/64, EU:C:1966:41), and, later, judgment of 8 June 1982, Nungesser and Eisele v Commission (258/78, EU:C:1982:211). Regarding the pharmaceutical sector, see, most recently, judgment of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52), in paragraph 79 of which the Court stated that ‘an industrial or commercial property right, as a legal entity, does not possess those elements of contract or concerted practice referred to in Article 101(1) TFEU, but the exercise of that right might fall within the ambit of the prohibitions contained in the Treaty if it were to manifest itself as the subject, the means or the consequence of an agreement or concerted practice … notwithstanding the fact that it may constitute the legitimate expression of the intellectual property right attached to the patent which empowers the holder of that patent, inter alia, to oppose any infringement’. 21 Judgment of 6 October 1982, Coditel and Others (262/81, EU:C:1982:334, paragraph 15). 22 Judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 107 and 108). 23 The Commission expressed the same position at the hearing on 6 February 2020 (pp. 7 and 8 of the full transcript of the hearing). 24 According to the normal system for sharing the burden of proof, laid down in Article 2 of Regulation No 1/2003 and reiterated consistently in the case-law, ‘it is for the party or the authority alleging an infringement of the competition rules to prove it and … it is for the undertaking or association of undertakings raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence’; judgment of 26 January 2017, Duravit and Others v Commission (C‑609/13 P, EU:C:2017:46, paragraph 56 and the case-law cited). See, to the same effect, judgment of 17 June 2010, Lafarge v Commission (C‑413/08 P, EU:C:2010:346, paragraph 29). 25 The specific subject matter of intellectual property does not in fact guarantee the holders of the rights in question the opportunity to demand the highest possible remuneration from broadcasting. That remuneration must be reasonable in relation to the parameters of the broadcast in question, including the actual or potential viewing public (paragraphs 41 and 42 of the Commission’s decision and paragraphs 53 and 54 of the judgment under appeal). 26 Opinion of Advocate General Kokott in Commission v Alrosa (C‑441/07 P, EU:C:2009:555, point 100). 27 Opinion of Advocate General Kokott in Commission v Alrosa (C‑441/07 P, EU:C:2009:555, point 102). 28 OJ 2011 C 308, p. 6. 29 The protection afforded by Article 16 of the Charter ‘covers the freedom to exercise an economic or commercial activity, freedom of contract and free competition. In addition, freedom of contract includes, in particular, the freedom to choose with whom to do business and the freedom to determine the price of a service’: see judgment of 20 December 2017, Polkomtel (C‑277/16, EU:C:2017:989, paragraph 50). To the same effect, see judgments of 12 July 2018; Spika and Others (C‑540/16, EU:C:2018:565, paragraph 34); of 6 October 2017; BB construct (C‑534/16, EU:C:2017:820, paragraphs 34 and 35); and of 22 January 2013, Sky Österreich (C‑283/11, EU:C:2013:28, paragraph 42). 30 Judgments of 9 September 2004, Spain and Finland v Parliament and Council (C‑184/02 and C‑223/02, EU:C:2004:497, paragraphs 51 and 52), and of 6 September 2012, Deutsches Weintor (C‑544/10, EU:C:2012:526, paragraph 54). 31 Judgment of 22 January 2013, Sky Österreich (C‑283/11, EU:C:2013:28, paragraph 46). 32 Judgment of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377, paragraph 41). 33 Judgment of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377, paragraph 47), which states that, ‘even though decisions adopted under each of those provisions are in either case subject to the principle of proportionality, the application of that principle nonetheless differs according to which of those provisions is concerned’. 34 Judgment of 11 January 2017, Spain v Council (C‑128/15, EU:C:2017:3, paragraph 71). See, to the same effect, inter alia, judgments of 15 February 2016, N. (C‑601/15 PPU, EU:C:2016:84, paragraph 54); of 8 April 2014, Digital Rights Ireland (C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 46); and of 23 October 2012, Nelson and Others (C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 71). 35 Opinion of Advocate General Kokott in Commission v Alrosa (C‑441/07 P, EU:C:2009:555, point 42 and the case-law cited in footnotes 22 and 23). 36 Judgment of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377, paragraph 49). 37 Judgment of 23 November 2017, Gasorba and Others (C‑547/16, EU:C:2017:891, paragraph 29). 38 Recital 22 of Regulation No 1/2003. 39 Moreover, ‘if commitments offered by one or more undertakings prove to be disproportionate having regard to the Commission’s aim of ensuring that competition is not distorted, it must not make those commitments binding. Instead, it must point out to the undertaking(s) that the commitments are disproportionate and, if necessary, suggest changes’; see the Opinion of Advocate General Kokott in Commission v Alrosa (C‑441/07 P, EU:C:2009:555, point 43). In any event, in the words of the same Advocate General, ‘the Commission is not required to agree to commitments the appropriateness of which could be assessed only after a thorough examination by the Commission’ (point 53). 40 Pursuant to Article 9(2)(b) of Regulation No 1/2003.