In his opinion delivered on 7 May (Case C-132/19 P), the Advocate General found that imposing the commitments made by Paramount with regard to the European Commission on broadcaster Canal+ in the context of an investigation into a competition proceeding does not comply with the principle of proportionality.
He therefore recommends that the Court of Justice partially uphold the appeal brought by Groupe Canal+ against the judgment of the General Court delivered on 12 December 2018 (T-873/16).
An action for annulment had been brought before the General Court by Groupe Canal+ against a Commission decision rendering the commitments that were entered into, in the context of the investigation procedure regarding competition, by the company Paramount for licensing agreements signed with Sky group companies legally binding (Case AT.40023 – Cross-border access to pay-TV).
The General Court had dismissed that action, judging that the fact that the individual commitments offered by an undertaking were made binding by the Commission did not mean that other undertakings were deprived of the possibility of protecting their contingent rights in the context of their relations with that undertaking.
The Advocate General indicates that the solution envisaged by the General Court would consequently jeopardise the functioning and effectiveness of the mechanism to protect competition based on decisions to accept commitments. An undertaking that makes certain commitments, which the Commission then makes binding, would in fact be exposed to two risks that would threaten legal certainty and the balance of the system: its contractual liability could be engaged by judges in the various EU countries, and the Commission could reopen the proceedings if the national judge obliged the company to breach the commitment that had been made binding.
According to the Advocate General, in accepting Paramount’s commitments, the Commission did not take appropriate account of the interests of third parties, which are particularly involved, since Paramount had already entered into contractual agreements with third parties, including Groupe Canal+, and thus breached the principle of proportionality. (Original version in French by Aminata Niang)