Judgment — ECLI:EU:T:2018:904
Date: 2018-12-12
Language of the case: French
Court formation: Fifth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded
Origin: France

summary and provisional nature, the Commission’s assessment of conformity with competition law set out in a decision under Article 9(1) of Regulation No 1/2003 must not ultimately prevent the national court from reaching a conclusion which deviates in whole or in part in the same case following further investigations and a more thorough examination (Opinion of Advocate General Kokott in Gasorba and Others, C‑547/16, EU:C:2017:692, points 33 and 35). 101 Consequently, 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 (judgment of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraph 49). 102 In that context, if the national court considers, following its analysis and after examining the possibility of pursuing the routes provided for in Articles 15 and 16 of Regulation No 1/2003, that the relevant clauses infringe Article 101(1) TFEU without satisfying the conditions in paragraph 3 of that article, it will be required to declare that they are void pursuant to Article 101(2) TFEU. On the other hand, if it considers that the relevant clauses do not infringe Article 101(1) TFEU or that they satisfy the conditions of paragraph 3 of that article, it will have to assess, where necessary, the merits of the claim before it, as Article 101 TFEU does not preclude the application of the relevant clauses. 103 In the latter situation, if the outcome of the proceedings before the national court leads Paramount to breach the commitment made binding under the contested decision, it will be for the Commission, where appropriate, to reopen its investigation in accordance with Article 9(2)(b) of Regulation No 1/2003, in which case it will not be bound by the decision of the national court (see, to that effect, judgments of 14 December 2000, Masterfoods and HB, C‑344/98, EU:C:2000:689, paragraph 48, and of 25 November 2014, Orange v Commission, T‑402/13, EU:T:2014:991, paragraph 27). 104 Having regard to the foregoing, it must be concluded that the contested decision does not affect the possibility for the applicant to 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, and does not preclude the possibility of interim measures being ordered to safeguard the interests of the parties pending final judgment (see, to that effect, judgment of 14 December 2000, Masterfoods and HB, C‑344/98, EU:C:2000:689, paragraph 58). 105 It should be added that the applicant would have been in an essentially similar situation if Paramount, by carrying out an autonomous analysis and before any intervention by the Commission, had concluded that the relevant clauses might appear to be problematic in the light of Article 101(1) TFEU and had declared that it intended no longer to honour them, relying to that effect on Article 101(2) TFEU. 106 Consequently, in adopting the contested decision, the Commission acted within the limits of the powers conferred on it by Article 9 of Regulation No 1/2003 and safeguarded the objective of that provision, which is based on considerations of procedural economy and efficiency (see paragraph 99 above), without affecting the applicant’s contractual or procedural rights in a manner that went beyond what is necessary in order to achieve those objectives. 107 In that context, paragraph 128 of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (see paragraph 92 above) must be understood not as meaning that a decision adopted under Article 9 of Regulation No 1/2003 which concerns the contractual relationship between the undertaking that offered a commitment and third parties has in itself effects on those third parties’ contractual rights, but as a condition intended to guarantee the effectiveness of the commitment in order for the Commission to accept it. Thus, the inclusion of paragraph 128 in the Commission notice in question had neither the object nor the effect of precluding that, in a case such as this, the Commission, exercising the power of assessment which it enjoys in such matters, will accept a commitment by Paramount to declare to its contracting partners that it intends to make the relevant clauses inapplicable, although it remains possible for a national court, in an action brought by the applicant, to conclude that the clauses in question do not infringe Article 101(1) TFEU. 108 It follows that, in making binding for Paramount the commitments set out in paragraphs 2.2 and 2.3 of the annex to the contested decision, the Commission did not exceed the power conferred on it by Article 9 of Regulation No 1/2003 and did not breach the principle of proportionality in that respect, and the second part of the first plea must therefore be rejected. Second plea, alleging infringement of Article 9 of Regulation No 1/2003 as regards the identification of the concerns addressed by the commitments imposed 109 Supported by the French Republic, the applicant claims that the commitments accepted by the Commission do not address the competition concerns expressed in its preliminary assessment. In particular, the object of the contested decision was to examine the agreements between Paramount and Sky on the distribution of audiovisual works in the United Kingdom and in Ireland. However, the Commission made commitments binding that related to the whole of the EEA and did so without examining the legal and economic context of the agreements entered into by Paramount, for the one part, and broadcasters other than Sky active in the EEA, for the other part. In proceeding from the premiss that any preliminary analysis relating to the market in the United Kingdom and in Ireland could be implicitly extrapolated to the French market, which was not the subject of an analysis the Commission made a manifest error of assessment entailing an error of law. What is more, the Commission imposed the same consequences on Sky and on the applicant, although those two broadcasters did not enjoy the same procedural rights, which entailed a breach of the applicant’s rights of defence. The Commission’s approach would become even more paradoxical after the departure of the United Kingdom from the EEA, since the commitments made binding would apply solely in markets which have not been the subject of any preliminary analysis by the Commission. 110 The applicant and the French Republic add that, in that context, the Commission ought to have opened a procedure covering all the distribution agreements concluded by Paramount and thus have given all the contracting parties the opportunity to reply to a statement of objections. In addition, in the same vein, the Commission ought to have declared a part of Paramount’s commitments binding and left it to Paramount to escape its obligations to third parties. It follows that, in making the proposed commitments binding for all of Paramount’s contractual relationships in the EEA, the Commission exceeded its powers and thus infringed Article 9 of Regulation No 1/2003. 111 The Commission disputes the merits of this plea. 112 As explained in paragraph 84 above, the arguments presented in the context of the first part of the third plea, alleging breach of the principle of proportionality, and those put forward in support of the second plea should be examined together. In fact, all of those arguments relate to the question whether, in adopting the contested decision, the Commission affected the applicant’s position in a disproportionate or unjustifiable manner having regard to the nature and the geographic scope of the competition concerns which it expressed. 113 It should be borne in mind that the specific characteristics of the mechanisms provided for in Articles 7 and 9 of Regulation No 1/2003 and the means of action available under each of those provisions are different, which means that the obligation on the Commission to ensure that the principle of proportionality is observed has a different extent and content, depending on whether it is considered in relation to the former or the latter article (judgment of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraph 38). 114 In particular, the application of the principle of proportionality in the context of Article 9 of Regulation No 1/2003 is confined to verifying that the commitments offered address the concerns which the Commission expressed to the undertakings concerned and that the latter undertakings have not offered less onerous commitments that address those concerns equally adequately. It is in that context that the Commission must take account of the interest of third parties, but it is not required itself to seek out less onerous or more moderate solutions than the commitments offered to it (judgment of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraphs 41 and 61). 115 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. However, 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 (judgment of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraph 48). 116 Moreover, as explained in paragraph 101 above, 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 (judgment of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraph 49). In that regard, it follows from the assessments of the effects that the contested decision has for the applicant (see paragraphs 85 to 104 above) that the applicant may bring an action before the national court in order to establish the compatibility of the relevant clauses with Article 101(1) TFEU and to request that court to draw, with regard to Paramount, the conclusions provided for in national law, and does not exclude the possibility of interim measures being ordered that are necessary to safeguard the interests of the parties pending final judgment (see, to that effect, judgment of 14 December 2000, Masterfoods and HB, C‑344/98, EU:C:2000:689, paragraph 58). 117 It follows that taking the interests of third parties into account in the context of a commitments procedure means that, among several types of commitments proposed that address equally adequately the competition concerns expressed by the Commission, the Commission must make binding the commitment which, when it is implemented by the addressee of the decision, will have a less pronounced effect in regard to those third parties. 118 First, it follows from the reasoning set out in paragraphs 43 to 58 above that, by their nature, the relevant clauses have as their object the partitioning of the national markets of the whole of the EEA, and their economic and legal context does not permit a finding that they are not capable of harming competition. Consequently, the concerns expressed by the Commission validly relate to the whole of that geographic area, so that the commitments offered and made binding are adequate to address those concerns, without the Commission being required to analyse one by one the national markets concerned. The arguments which the applicant has put forward in that regard both in the context of the second plea (see paragraph 109 above) and in the context of the third plea (see paragraphs 77 and 78 above) are therefore irrelevant. 119 Second, in the present case no commitment addressing equally adequately the competition concerns expressed by the Commission and the execution of which by Paramount would have had less pronounced effects vis-à-vis the applicant was proposed to the Commission. In any event, no such commitment seems to be manifestly adequate in order to address the Commission’s concerns as effectively without requiring Paramount to no longer honour the relevant clauses. 120 Third, the argument that the commitments have a harmful effect on cultural diversity within the whole of the EEA owing to the loss of revenues that broadcasters could devote to the making of European films must be rejected for the reasons set out in paragraphs 57 and 69 above. 121 Fourth, in so far as, by their arguments, the French Republic, EFADs, UPC and C More Entertainment implicitly claim that there are insurmountable barriers of a practical nature preventing the supply of cross-border broadcasting services to the French market, it must be held that they adduce no evidence capable of showing that that is so. In addition, the inclusion of Article 3 in the agreement of 1 January 2014 constitutes a particularly conclusive indication to the contrary (see, to that effect, judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraphs 33 and 47). 122 In those circumstances, fifth, the arguments alleging in particular that the applicant did not enjoy the same procedural rights as Sky and those based on the imminent departure of the United Kingdom from the European Union are also irrelevant. What is meant by the taking into account of the interest of third parties in the context of a commitment procedure is explained in paragraphs 115 to 117 above, and the argument based on the limited procedural rights enjoyed by the applicant as an interested third party must therefore be rejected for the reasons set out in paragraph 119 above. As for the complaint based on the imminent departure of the United Kingdom from the European Union, it is sufficient to point out that the relevant clauses have as their object the partitioning of the national markets of the whole of the EEA, and the departure of the United Kingdom therefore does not in any event affect the validity of the concerns expressed by the Commission (see paragraph 118 above). 123 It follows from the foregoing considerations that, in adopting the contested decision, the Commission did not exceed the powers conferred on it under Article 9 of Regulation No 1/2003 and did not breach the principle of proportionality, as the applicant claims in the context of the first part of the third plea. 124 The second plea and the first part of the third plea must therefore be rejected. Fourth plea, alleging misuse of powers 125 In the applicant’s submission, the fact of having accepted commitments covering the whole of the EEA and not addressing competition concerns, as explained in the context of the second plea, means that the contested decision was adopted for an unlawful reason, which also constitutes a misuse of powers. In addition, it maintains that the Commission substituted itself for the EU legislature, which is dealing with the issue of geo-filtering in the broadcasting of audiovisual works, and thus encroached on the legislature’s powers by pre-empting those choices. The conduct of the legislative process, and also the implications of the contested decision, which are much wider than the object of that decision, bear witness to the Commission’s intention to impose de facto legislation by also prejudging the outcome of other pending investigations. The applicant also requests the Court to ask the Commission to communicate the preparatory acts relating to the contested decision and to the legislative process in question, so that serious indicia of a misuse of powers may be further corroborated. 126 EFADs claims that the Commission has not published a full version of the commitments offered or given interested third parties access to the statement of objections. 127 The Commission disputes the merits of the fourth plea. 128 It should be borne in mind that a misuse of powers exists when an institution exercises its powers with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (judgment of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 99). 129 As is clear from paragraph 118 above, the commitments offered and made binding are adequate for addressing the competition concerns expressed by the Commission, and for the whole of the EEA. Consequently, the applicant’s argument that the Commission misused its powers in that the commitments in question did not address the concerns expressed is based on a false premiss. 130 As for the applicant’s remaining arguments alleging encroachment on the legislative process, it must be held that such a process, as long as it has not resulted in the adoption of a legislative measure, is without prejudice to the powers conferred on the Commission by Article 101 TFEU and Regulation No 1/2003. Consequently, the fact that the Commission exercised those powers by making binding for Paramount the commitments which Paramount offered, although a legislative procedure was in course concerning rights such as those concerned by the present case, is not capable of demonstrating a misuse of powers. 131 Last, it must be stated that the objections raised by EFADs concerning the publication of the commitments offered and access to the statement of objections constitute in reality pleas which were not raised by the applicant and must therefore be rejected as inadmissible. In any event, the undertakings and other bodies not having the status of party concerned within the meaning of Article 27(2) of Regulation No 1/2003 have the rights provided for in Article 27(4) of Regulation No 1/2003 and Article 13 of Regulation No 773/2004, which the Commission observed in the present case (see paragraphs 4 and 5 above). 132 The fourth plea must therefore be rejected and the action dismissed in its entirety. Costs 133 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 134 Under Article 138(1) of the Rules of Procedure, moreover, the Member States which have intervened in the proceedings are to bear their own costs and, under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 to bear his own costs. 135 As the applicant has been unsuccessful, it must be ordered to pay the Commission’s costs, with the exception of those relating to the intervention of the French Republic, EFADS, UPC and C More Entertainment, and to pay BEUC’s costs, in accordance with the forms of order sought by them. 136 Furthermore, the French Republic, EFADS, UPC and C More Entertainment must, in addition to bearing their own costs, pay the costs incurred by the Commission in relation to their intervention. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Dismisses the action; 2. Orders Groupe Canal + SA, in addition to bearing its own costs, to pay the costs incurred by the European Commission, with the exception of those relating to the intervention of the French Republic, the European Film Agency Directors — EFADs, the Union des producteurs de cinéma (UPC) and C More Entertainment AB, and by the Bureau européen des unions de consommateurs (BEUC); 3. Orders the French Republic, EFADs, UPC and C More Entertainment, in addition to bearing their own costs, to pay the costs incurred by the Commission in relation to their intervention. Gratsias Dittrich Ulloa Rubio Delivered in open court in Luxembourg on 12 December 2018. [Signatures] * Language of the case: French.