COMPETITION • EUROPEAN LAW • PROCEDURE
Under Article 7 of Regulation No 1/2003, the Commission may, by decision, require the undertakings and associations of undertakings concerned to bring to an end the infringement established. The finding of the infringement, in the operative part of the decision, is an imperative condition for an injunction to cease and desist to be issued. The Commission may find the existence of an infringement even though the infringement has ceased, where it has a legitimate interest in doing so. Such is the case in particular where the decision finding an infringement can clarify the legal situation and prevent recidivism. However, as the Court of Justice has clarified, the Commission is required to justify a legitimate interest in finding an infringement where that infringement has ceased only if it does not impose a fine.
The injunction to bring the infringement to an end must be “in relation to the infringement which has been established”. The EU authority may impose structural or behavioral remedies upon the parties but those remedies must be proportionate to the infringement committed and necessary to effectively bring it to an end. The charges imposed must not exceed what is appropriate and necessary to re-establish compliance with law and bring the infringement to an end. Article 7 of Regulation No 1/2003 specifies that a structural remedy can only be imposed if there is no equally effective behavioral measure available. The Commission may issue prescriptive or cease and desist injunctions to undertakings for the purpose of bringing the infringement to an end.
An injunction to take a particular action must not breach the principle of freedom of contract. Although the Commission may order a renegotiation or the termination of contracts where the elimination of the restrictive effects of the practice depends on it, it is not empowered to order the conclusion of a contract or to prohibit concluding future contracts. The Commission may also order an undertaking to provide copyright information, to supply goods, or to disclose prices.
The cease and desist injunction may prohibit the parties from continuing certain acts or practices, or from adopting similar conduct in the future. The Commission may thus order an undertaking in a dominant position to stop granting any discount with no objective consideration. An injunction, by its preventive nature, does not depend on the situation of the undertakings concerned at the time when the decision was adopted. An injunction enjoining an undertaking to refrain from doing something may therefore be addressed to an undertaking which is no longer active in the market concerned.
