Bunden av fri vilja? - En studie avseende åtagandebeslut i ljuset av tredje parts avtalsenliga rättigheter

Sammanfattning: The Court of Justice of the European Union’s (CJEU) case C-132/19 P Canal+ from December 2020 clarifies the issue of third party rights within commitment procedures. The judgment amounts to the first ever annulment of a commitment decision of the European Commission, regarding binding commitments aimed at addressing an investigation into cross-border pay-TV services. According to the Commission, Paramount’s license clauses restricted their contracting parties’ ability to perform passive sales. Hence, Paramount had to commit to legally binding commitments to address the problem. The thesis aims at examining third party rights within commitment procedures where commitments have become binding for other parties than the third party. The aim is further to explore what the Commission’s proportionality assessment includes within these procedures. The thesis examines case law within the area such as the former leading case C-441/07 P Alrosa and the newly published case of Canal+ which dramatically annuls the CJEU’s former position on third party rights. Legally binding commitments under Article 9 Regulation 1/2003 are commitments freely offered by companies, in order to address the Commission’s competition concerns regarding their actions within the market. The commitments are made binding by the Commission through a decision and will, for example, establish how the company should act or not act within the future. In the Alrosa case, the CJEU declared that commitment decisions do not preclude the ability for third parties to claim their rights in national court. The Court only considered Alrosa as an interested third party and therefore, Alrosa enjoyed only the rights of an interested third party. The principle of proportionality should, according to the CJEU, mainly focus on the commitments’ ability to address the competition issues concerned. However, the Commission should consider third party interests. In the case Canal+, the contractual rights of a third party outweighed the objective of promoting a competitive market. The judgment annulled the commitment decision, stating the inability for third parties to claim their rights in national court within these matters. The case clarifies that the proportionality assessment shall mainly focus on the commitments’ impact on third party interests since commitments, as those in the case in question, could entail too great an interference with third parties’ freedom of contract. The legal development within the area have thus led to a stronger protection of third party rights and the freedom of contract.