xml version="1.0" encoding="UTF-8"?


C\_2019375EN.01001601.xml


| | | | |
| --- | --- | --- | --- |
| 6.11.2019 | EN | Official Journal of the European Union | C 375/16 |

---

Final Report of the Hearing Officer [(1)](#ntr1-C_2019375EN.01001601-E0001)

Qualcomm (predation)

(AT.39711)

(2019/C 375/06)

1.   Introduction

| | | |
| --- | --- | --- |
| | (1) | The draft decision to which this report relates (the ‘Draft Decision’) finds that Qualcomm Inc. (‘Qualcomm’), from 1 July 2009 to 30 June 2011 inclusive, supplied below cost certain quantities of three of its UMTS-compliant chipsets [(2)](#ntr2-C_2019375EN.01001601-E0002) to two of its key customers, Huawei and ZTE, with the intention of eliminating Icera Inc. (‘Icera’ [(3)](#ntr3-C_2019375EN.01001601-E0003)), its main competitor at that time in the market segment offering advanced data-rate performance. According to the Draft Decision, this infringed Article 102 TFEU and Article 54 of the Agreement on the European Economic Area. |

2.   Initial investigation phase

| | | |
| --- | --- | --- |
| | (2) | Case AT.39711 stems from an initial complaint made by Icera to the Commission on 30 June 2009, replaced by a revised and updated version dated 8 April 2010. |

| | | |
| --- | --- | --- |
| | (3) | The Commission started its investigation on the basis of the allegations made in the latter replacement version. On 26 July 2010, Qualcomm submitted observations concerning that version. |

| | | |
| --- | --- | --- |
| | (4) | By submissions of 1 May, 17 May and 31 July 2012, Nvidia, which had acquired Icera in May 2011, supplied further information, supplementing and bringing to the fore allegations concerning predatory pricing. |

| | | |
| --- | --- | --- |
| | (5) | Between June 2010 and April 2015, the Commission sent several requests for information to Qualcomm, Icera/Nvidia and other actors in the baseband chipset sector. On 8 August 2013, the Hearing Officer [(4)](#ntr4-C_2019375EN.01001601-E0004), in accordance with Articles 3(7) and 4(2)(c) of Decision 2011/695/EU, extended the time limit for Qualcomm to respond to one such request, dated 10 July 2013. [(5)](#ntr5-C_2019375EN.01001601-E0005) |

| | | |
| --- | --- | --- |
| | (6) | On 3 March 2014, following requests in 2013 from Qualcomm, the Commission Directorate-General for Competition (‘DG Competition’) provided Qualcomm with less redacted versions of the initial complaint of 2009 and of the amended complaint of 2010. |

| | | |
| --- | --- | --- |
| | (7) | On 16 July 2015, the Commission initiated proceedings, for the purposes of Article 11(6) of Council Regulation (EC) No 1/2003 [(6)](#ntr6-C_2019375EN.01001601-E0006) and Article 2(1) of Commission Regulation (EC) No 773/2004 [(7)](#ntr7-C_2019375EN.01001601-E0007), in respect of Qualcomm in Case AT.39711. |

| | | |
| --- | --- | --- |
| | (8) | Following a ‘state-of-play’ meeting held on 3 September 2015 between DG Competition and Qualcomm, DG Competition provided Qualcomm on 11 September 2015 with the submissions by Nvidia mentioned in (4) above. |

3.   First statement of objections

| | | |
| --- | --- | --- |
| | (9) | On 8 December 2015, the Commission issued, for the purposes of Article 27(1) of Regulation (EC) No 1/2003 and Article 10(1) of Regulation (EC) No 773/2004, a statement of objections addressed to Qualcomm (the ‘SO’). |

3.1.   
Access to the file following the SO

| | | |
| --- | --- | --- |
| | (10) | On 21 December 2015, DG Competition provided Qualcomm with documents on an electronic storage device for the purposes of access to the investigation file in Case AT.39711 in accordance with Article 27(2) of Regulation (EC) No 1/2003. DG Competition subsequently provided Qualcomm with additional material, in particular less redacted versions of third-party submissions. However, not all access-to-file matters could be resolved between DG Competition and Qualcomm. |

| | | |
| --- | --- | --- |
| | (11) | By letter to me dated 18 April 2016, Qualcomm requested, in accordance with Articles 3(7) and 7(1) of Decision 2011/695/EU, additional access to, or where appropriate clarification of, certain materials on the case file. My decision dated 13 July 2016 describes how I dealt with the numerous requests concerned, striking a balance between Qualcomm’s right to be heard and competing confidentiality interests. In essence, this involved the provision of less redacted versions of certain documents originating from Icera/Nvidia and various other third parties. Allowing the information providers concerned to be heard [(8)](#ntr8-C_2019375EN.01001601-E0008) and, where relevant, to draw up new versions of the documents concerned took some time, generally requiring several rounds of correspondence. |

3.2.   
Time limit for Qualcomm’s written response to the SO

| | | |
| --- | --- | --- |
| | (12) | The cover letter enclosing the SO gave Qualcomm four months in which to reply in writing to the SO. This time limit was set taking into account, in particular, the size and nature of the file, the content of the SO and the fact that, on the adoption date of the SO, a statement of objections addressed to Qualcomm in Case AT.40220 – Qualcomm (exclusivity payments) had also been adopted. The time limit in Case AT.39711 was to start running from the date of, in substance, provision of access to the file. Following a request from Qualcomm, DG Competition moved the deadline for Qualcomm’s written response to 6 May 2016. |

| | | |
| --- | --- | --- |
| | (13) | In the letter to me dated 18 April 2016 mentioned in (11) above, Qualcomm took issue with the revised deadline of 6 May 2016, seeking, in effect, additional time. By email to Qualcomm dated 29 April 2016, I suspended the running of the time limit for the submission of Qualcomm’s written response to the SO. |

| | | |
| --- | --- | --- |
| | (14) | In my decision dated 13 July 2016 (see (11) above) I lifted that suspension and set a new deadline for Qualcomm’s written response to the SO at 15 August 2016. Qualcomm submitted its written response (the ‘SO Response’) on that date. |

3.3.   
First oral hearing

| | | |
| --- | --- | --- |
| | (15) | On 10 November 2016, Qualcomm developed its arguments at an oral hearing that it had requested in the SO Response. [(9)](#ntr9-C_2019375EN.01001601-E0009) |

4.   Interested third person

| | | |
| --- | --- | --- |
| | (16) | In May 2016, I admitted an interested third person to proceedings in Case AT.39711 in accordance with Article 27(3) of Regulation (EC) No 1/2003, Article 13(1) of Regulation (EC) No 773/2004 and Article 5 of Decision 2011/695/EU. In July 2016, in accordance with Article 13(1) of Regulation (EC) No 773/2004, DG Competition informed that interested third person in writing of the nature and subject matter of the procedure [(10)](#ntr10-C_2019375EN.01001601-E0010) and set a time limit within which that person could make known its views in writing. In August 2016, the interested third person indicated by email to DG Competition that it had no comments to submit. It did not request to participate in an oral hearing and took no further part in proceedings in Case AT.39711. |

5.   Further investigative measures and related litigation

| | | |
| --- | --- | --- |
| | (17) | Following the first oral hearing, the Commission undertook further measures of investigation in the light of Qualcomm’s written and oral response to the SO. |

| | | |
| --- | --- | --- |
| | (18) | In particular, on 30 January 2017, the Commission sent Qualcomm a request for information pursuant to Article 18(2) of Regulation (EC) No 1/2003. Qualcomm did not provide any response. On 31 March 2017, the Commission demanded this information by decision pursuant to Article 18(3) of that regulation (the ‘RFI Decision’). In 2017, the Commission also sent requests for information to Nvidia and two third parties. |

| | | |
| --- | --- | --- |
| | (19) | By letter dated 10 April 2017, Qualcomm sought an extension until 28 July 2017 of the time limit for responding to the RFI Decision. On 26 April 2017, DG Competition rejected the arguments in that letter but, ‘as a matter of courtesy’ allowed Qualcomm until 26 May 2017 to respond to certain questions in the RFI Decision and until 9 June 2017 in relation to other specified questions in the RFI Decision. |

| | | |
| --- | --- | --- |
| | (20) | On 8 May 2017, Qualcomm took issue with these deadlines in accordance with Article 4(2)(c) of Decision 2011/695/EU. By decision dated 15 May 2017, I revised them to 16 and 30 June 2017 respectively. Qualcomm’s substantive response to the RFI Decision respected these revised deadlines. |

| | | |
| --- | --- | --- |
| | (21) | Subsequently, the Commission addressed clarification questions to Qualcomm. It also sent Qualcomm an additional request for information pursuant to Article 18(2) of Regulation (EC) No 1/2003 on 10 November 2017. |

| | | |
| --- | --- | --- |
| | (22) | On 13 June 2017, Qualcomm lodged an application for the annulment of the RFI Decision and sought interim measures restraining the operation of the RFI Decision pending adjudication of this application. In July 2017, the President of the General Court dismissed the application for interim measures. [(11)](#ntr11-C_2019375EN.01001601-E0011) In April 2019, the General Court dismissed Qualcomm’s annulment action. [(12)](#ntr12-C_2019375EN.01001601-E0012) |

6.   Supplementary statement of objections

| | | |
| --- | --- | --- |
| | (23) | On 19 July 2018, the Commission adopted a supplementary statement of objections addressed to Qualcomm (the ‘SSO’). Compared with the SO, the SSO notably alleged a shorter duration of predation and used a revised methodology for conducting a comparison of Qualcomm’s prices and costs concerning the allegedly predatory sales concerned. |

6.1.   
Access to the file following the SSO

| | | |
| --- | --- | --- |
| | (24) | On 31 July 2018, DG Competition provided Qualcomm with an electronic storage device containing copies of accessible documents that became part of the Commission’s investigation file after the adoption of the SO. |

| | | |
| --- | --- | --- |
| | (25) | By letter to DG Competition dated 8 August 2018, Qualcomm sought, among other things, further access to documents that were part of the investigation file at the time of adoption of the SO but which, due to the passage of time, could, according to Qualcomm, no longer be considered as containing genuinely confidential information. By letter of 14 August 2018, DG Competition declined this request. It also addressed the other matters raised in Qualcomm’s letter of 8 August 2018. |

| | | |
| --- | --- | --- |
| | (26) | On 19 September 2018, I received a reasoned request for further access to the file from Qualcomm. However, this request was materially different to the more general request made to DG Competition on 8 August 2018 (see (25) above). In the light of Articles 3(7) and 7(1) of Decision 2011/295/EU, I considered that Qualcomm’s request of 19 September 2018 was not ripe for my independent review. On 21 September 2018, I informed Qualcomm by email that I had transferred this request to DG Competition. |

| | | |
| --- | --- | --- |
| | (27) | On 28 September 2018, DG Competition responded to Qualcomm’s letter of 19 September 2018. In particular, DG Competition granted further access to most of the documents listed by Qualcomm and explained that redactions featuring in the original versions of certain documents on the investigation file were attributable to legal professional privilege (‘LPP’) claims made by Nvidia. |

| | | |
| --- | --- | --- |
| | (28) | By letter to DG Competition dated 4 October 2018, Qualcomm made a number of complaints inspired in large part by DG Competition’s explanations of 28 September 2018 regarding Nvidia’s LPP claims. DG Competition responded by letter dated 9 October 2018. |

| | | |
| --- | --- | --- |
| | (29) | On 12 October 2018, Qualcomm wrote to me with, in essence, three requests: (i) that I direct DG Competition ‘to confirm whether it ha[d] ascertained that the ... redactions contained in [specified documents were] based on sound assertions of LPP ....’; (ii) ‘access to unredacted versions’ of specified documents, of which Qualcomm already had redacted versions; and (iii) that I direct DG Competition ‘to address Qualcomm’s request to be provided with any documents which, contrary to what the [i]ndex [of the file] indicate[d], [were], in fact, accessible’. |

| | | |
| --- | --- | --- |
| | (30) | In my decision dated 7 November 2018, I explained that Qualcomm’s first request described in (29) above did not concern access to the file and that the Hearing Officer does not have decisional powers to order such a course of action. As for the second request described in (29) above, I considered this to have been satisfied by the time of this decision, since the two third parties concerned had, by that stage, dropped their relevant confidentiality claims. I granted Qualcomm’s third request. Consequently, on 8 November 2018, DG Competition sent Qualcomm a follow-up letter, explaining in substance that the index of the investigation file was accurate. |

6.2.   
Time limit for Qualcomm’s written response to the SSO

| | | |
| --- | --- | --- |
| | (31) | The Commission initially granted Qualcomm eight weeks for responding in writing to the SSO. On 2 August 2018, Qualcomm asked DG Competition for an additional period of ‘at a minimum ... three additional months from the working day following the provision of effective access to file’. By letter of 9 August 2018, DG Competition granted Qualcomm, ‘as a matter of courtesy’, an extension of two weeks, bringing the deadline to 10 October 2018. |

| | | |
| --- | --- | --- |
| | (32) | Dissatisfied, on 14 August 2018 Qualcomm sought, under Article 9 of Decision 2011/695/EU, ‘an extension until 23 December 2018’. By decision of 20 August 2018, the Hearing Officer [(13)](#ntr13-C_2019375EN.01001601-E0013) set 22 October 2018 as the revised deadline. |

| | | |
| --- | --- | --- |
| | (33) | Qualcomm submitted its written response to the SSO (the ‘SSO Response’) on that revised deadline date. |

6.3.   
Second oral hearing and related matters

| | | |
| --- | --- | --- |
| | (34) | In the SSO Response, Qualcomm requested an oral hearing. |

| | | |
| --- | --- | --- |
| | (35) | This second oral hearing was initially scheduled to take place on Tuesday, 11 December 2018. On Friday, 7 December 2018, Qualcomm sought the postponement of this hearing until early January 2019. In the light of Qualcomm’s specific reasons, I rescheduled the hearing to 10 January 2019. On 19 December 2018, the Hearing Officer rejected Qualcomm’s subsequent request to have the hearing moved to the following week in January 2019. [(14)](#ntr14-C_2019375EN.01001601-E0014) Accordingly, the second oral hearing took place on 10 January 2019. |

| | | |
| --- | --- | --- |
| | (36) | On 25 April 2019, Qualcomm, at its own initiative, sent the Commission a ‘follow-up submission to the [second] oral hearing’. |

7.   Letter of facts

| | | |
| --- | --- | --- |
| | (37) | On 22 February 2019, the Commission sent Qualcomm a ‘letter of facts’. This communication (the ‘Letter of Facts’) was designed: (i) to provide Qualcomm with clarifications regarding certain elements set out in the SSO with which Qualcomm took issue in the SSO Response; (ii) to inform Qualcomm about pre-existing evidence that was not expressly relied on in the SO or the SSO; and (iii) to bring to Qualcomm’s attention minor updates to the SSO’s price-cost analysis. |

7.1.   
Access to the file in connection with the Letter of Facts

| | | |
| --- | --- | --- |
| | (38) | The Letter of Facts included an annex containing ‘the accessible versions of all documents reflecting contacts with third parties registered on the case file since the adoption of the SSO [that] were not previously provided to Qualcomm, as well as two other documents’. |

| | | |
| --- | --- | --- |
| | (39) | One of these ‘two other documents’ was the original (non-redacted) version of a spreadsheet in relation to which its author had, in advance of my decision mentioned in (30) above, dropped confidentiality claims (the ‘Full-version Spreadsheet’) but which, owing to a ‘transmission error’ had been sent to Qualcomm on 19 October 2018 in its previous redacted version rather than its full original form (see further (53) and (54) below). |

7.2.   
Deadline for responding to the Letter of Facts

| | | |
| --- | --- | --- |
| | (40) | The initial deadline for responding to the Letter of Facts was 12 March 2019. By letter to Qualcomm dated 8 March 2019, DG Competition changed this deadline to Friday, 22 March 2019‘as a matter of courtesy’, even though it considered the arguments in Qualcomm’s extension request, dated 1 March 2019, to be unmeritorious. |

| | | |
| --- | --- | --- |
| | (41) | By email dated 12 March 2019, I rejected Qualcomm’s request of 8 March 2019 for an extension until 9 April 2019 of the time limit for responding to the Letter of Facts. |

| | | |
| --- | --- | --- |
| | (42) | DG Competition subsequently acceded to Qualcomm’s request, dated 19 March 2019, to be allowed to provide its comments on the Letter of Facts by Monday, 25 March 2019. Qualcomm provided these comments on Sunday, 24 March 2019. |

7.3.   
Rejection of Qualcomm’s request for a third oral hearing

| | | |
| --- | --- | --- |
| | (43) | In its comments on the Letter of Facts. Qualcomm contended, among other things, that the Letter of Facts was ‘not, in substance, a letter of facts’ but instead ‘an additional statement of objections’. In a footnote in these comments, Qualcomm accordingly requested another oral hearing. |

| | | |
| --- | --- | --- |
| | (44) | By email to Qualcomm dated 26 April 2019, I rejected that contention and that request. [(15)](#ntr15-C_2019375EN.01001601-E0015) |

8.   Procedural issues raised by Qualcomm

8.1.   
Alleged inadequacy of time limits

8.1.1.   Time limit for responding to the SO

| | | |
| --- | --- | --- |
| | (45) | The SO Response complained, among other things, that the extended time limit for responding to the SO in writing was inadequate to ensure that the SO Response was completed to Qualcomm’s satisfaction. In particular, Qualcomm argued that it was disproportionate and contrary to fundamental principles of EU law such as the rights of defence and equality of arms for Qualcomm to be required to prepare its defence in what the SO Response described as the ‘amount of additional time allowed by the Hearing Officer to respond to the SO once he ‘restarted the clock’ on 13 July 2016’. |

| | | |
| --- | --- | --- |
| | (46) | As emerges from (9) to (14) above and contrary to what the SO Response sought to suggest, Qualcomm ultimately had over eight months in which to prepare the SO Response. This appears to have been ample time for Qualcomm to exercise effectively its right to be heard in writing, [(16)](#ntr16-C_2019375EN.01001601-E0016) bearing in mind the need to avoid undue delay in proceedings [(17)](#ntr17-C_2019375EN.01001601-E0017) and irrespective of the fact that, for over six of these months, Qualcomm was also preparing its response to a separate statement objections, adopted on the same day as the SO, in Case AT.40220 Qualcomm (exclusivity). |

| | | |
| --- | --- | --- |
| | (47) | The SO Response’s suggestion of an improper and ‘disproportionate’ time limit for the SO Response is premised on a suggestion that Qualcomm could only begin work on the SO Response once I lifted the suspension of the time limit for the SO Response on 13 July 2016. However, from receipt of the SO in early December 2015, Qualcomm could begin and advance its preparation of the SO Response. |

8.1.2.   Time limit for responding to the SSO

| | | |
| --- | --- | --- |
| | (48) | In the SSO Response, Qualcomm complained that the total amount of time the Commission granted for the SSO Response was ‘insufficient and disproportionate’. However, the SSO Response does not specify in what respects Qualcomm considered that the revised time limit for responding to the SSO Response was ‘insufficient’ or its rights of defence had been compromised. In the extension decision of 20 August 2018 mentioned in (32) above, the Hearing Officer already took into account the degree of changes to Case AT.39711 brought about by the SSO. As regards Qualcomm’s suggestion that the period granted for the SSO Response was ‘disproportionate’, the mere juxtaposition in the SSO Response of Qualcomm’s description of the steps it took to comply with that time limit and the time between the first oral hearing and the SSO is incapable of demonstrating what Qualcomm seemed to consider to be an unlawful lack of proportion between the time period for responding to the SSO and the time the Commission took for all the steps leading to the issuance of the SSO. |

8.2.   
Access to the file

8.2.1.   Access to the file following the SO

| | | |
| --- | --- | --- |
| | (49) | In the SO Response, Qualcomm complained about the extent of confidentiality redactions applied to the documents initially provided to Qualcomm for the purposes of access to the file. However, the SO Response acknowledged that, ‘[f]ollowing the Hearing Officer’s review [leading to my decision dated 13 July 2016], Qualcomm received additional less redacted versions of documents on the case file’. The SO Response also acknowledged in substance that this review resolved the issue of the legitimacy of the confidentiality claims maintained by third parties in respect of those documents. |

8.2.2.   Access to the file following the SSO

| | | |
| --- | --- | --- |
| | (50) | The SSO Response claimed that a breach of Qualcomm’s rights of defence resulting from what Qualcomm considered to be an insufficient period for responding to the SSO (see (48) above) was ‘exacerbated by numerous access to file issues, some of which remain[ed] unresolved’. |

| | | |
| --- | --- | --- |
| | (51) | It is unclear what access-to-file issues Qualcomm considered to ‘remain unsolved’. The SSO Response did not raise any such issue that was not already dealt with by the Commission before Qualcomm’s submission of the SSO Response. The SSO Response in essence simply contained the bald assertion that, in combination with what Qualcomm considered to be an inadequate period for responding to the SSO, the access-to-file issues described in the SSO Response seriously and irreparably hampered Qualcomm’s ability to defend itself. |

8.2.3.   Belated transmission of the Full-version Spreadsheet

| | | |
| --- | --- | --- |
| | (52) | The SSO Response did suggest that the full version of what it termed a ‘crucial’ document was improperly made available to Qualcomm a mere single working day before the deadline for the SSO Response. However, the SSO Response’s substantive argument ostensibly based on this version of that document could just as easily have been based on the previously accessible redacted version of the same document. |

| | | |
| --- | --- | --- |
| | (53) | Indeed, it later transpired that that argument was in fact based on that previously accessible redacted version. This is because the document in question is the Full-version Spreadsheet, which, as indicated in (39) above, was sent in its original form to Qualcomm only after the submission of the SSO Response. |

| | | |
| --- | --- | --- |
| | (54) | According to Qualcomm’s response to the Letter of Facts, the ‘belated’ transmission of the Full-version Spreadsheet compromised Qualcomm’s rights of defence. However, given that Qualcomm at no stage made submissions specifically related to the information that was redacted in the previously accessible version of this document, this claim is unsubstantiated. |

8.3.   
Claim of a failure to conduct a proper and timely investigation

| | | |
| --- | --- | --- |
| | (55) | The SSO Response claims that the Commission’s investigation has been mismanaged and unusually long, thereby affecting Qualcomm’s ability properly to defend itself. |

| | | |
| --- | --- | --- |
| | (56) | The reasonableness of the duration of an administrative proceeding falls to be appraised, if necessary, by the EU courts in the light of the particular circumstances of each case and, in particular, the background to the case, the various procedural stages followed, the complexity of the case, its importance for the various parties involved, as well as the conduct of the party concerned and the Commission. [(18)](#ntr18-C_2019375EN.01001601-E0018) However, this list of criteria is not exhaustive and the assessment of the reasonableness of the period in question does not require a systematic examination of the circumstances of the case in the light of each of them where the duration of the proceedings appears justified in the light of one of them. The purpose of those criteria is to determine whether the time taken in the handling of a case is justified. Thus, the complexity of the case or the dilatory conduct of the party concerned may be deemed to justify a duration which might at first sight appear too long. [(19)](#ntr19-C_2019375EN.01001601-E0019) |

| | | |
| --- | --- | --- |
| | (57) | For present purposes, it does not appear to me that the length of proceedings has prejudiced the effective exercise of Qualcomm’s rights of defence. Among other things, the case has been technical and relatively complex from the start. As emerges from (2) to (4) above, the complaint made to the Commission in 2009 and revised in 2010 alleged abusive conduct by Qualcomm in various respects, but it was not until 2012 that suspected predatory pricing moved to the fore of the complainant’s allegations and of the Commission’s investigation. Qualcomm’s complaints that the passage of time has made its defence more difficult are put into perspective by the fact that, as the General Court has already noted in the context of Case AT.39711 (see (22) above), because Qualcomm had been in receipt of requests for information under Article 18(2) and (3) of Regulation (EC) No 1/2003 since 7 June 2010, it was incumbent on Qualcomm, at least from that date, to act diligently to take all appropriate measures in order to preserve such evidence as might reasonably be available to it. [(20)](#ntr20-C_2019375EN.01001601-E0020) In any event, the passage of time does not appear to have unduly hindered Qualcomm from running its defence. For example, the criticisms made by Qualcomm in exercise of its right to be heard in respect of the SO led the Commission to refine its case, as it is permitted to do by relevant case-law (see (59) below). In turn, drawing up the SSO and hearing Qualcomm’s response to it inevitably added to the duration of proceedings, without rendering that duration unreasonable. |

8.4.   
Claims of prosecutorial bias and an unfair investigation

| | | |
| --- | --- | --- |
| | (58) | Asserting that Qualcomm had legitimate expectations that (i) the Commission would have completed its fact-finding by the time of the SO and (ii) the Commission would terminate its investigation after the first oral hearing, the SSO Response alleged that the SSO was ‘the product of manifest prosecutorial bias’. According to Qualcomm, the Commission engaged in a ‘fishing expedition’ after the first oral hearing when it should have ended its investigation after Qualcomm had undermined the SO’s case. In a similar vein, (i) Qualcomm’s response to the Letter of Facts asserts that the case against Qualcomm is the product of a biased and unfair investigation and (ii) Qualcomm’s ‘follow-up submission’ mentioned in (36) above casts aspersions on the objectivity of the second oral hearing and the investigation in Case AT.39711 more generally. |

| | | |
| --- | --- | --- |
| | (59) | Qualcomm’s claims of legitimate expectations are unsubstantiated. In addition, the mere fact that the Commission, in the light in particular of matters raised by Qualcomm in response to the SO, conducted further investigations after the first oral hearing is not of itself such as to indicate prosecutorial bias. Indeed, it emerges from case-law that, since the Commission must take into account the factors emerging from the administrative procedure in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, it is entitled to amend (aspects of) its case, if necessary by way of a supplementary statement of objections. [(21)](#ntr21-C_2019375EN.01001601-E0021) It should also be borne in mind that when a case is, like Case AT.39711, based on formal complaints, it cannot simply be dropped without rejecting these complaints. |

8.5.   
Claims that the SSO is a misuse of the Commission’s powers and a breach of the duty of sound administration

| | | |
| --- | --- | --- |
| | (60) | According to the SSO Response, since the SSO ‘is the product of mismanagement and prosecutorial bias’, it is ‘a misuse of the Commission’s investigatory powers’. Similarly, Qualcomm alleged that the Commission has breached its duty of sound administration within the meaning of Article 41 of the Charter, since the SSO is evidence of maladministration and the result of prosecutorial bias. |

| | | |
| --- | --- | --- |
| | (61) | It emerges from (45) to (59) above that Qualcomm’s claims of maladministration and prosecutorial bias are unconvincing. These subsidiary claims are thus likewise unconvincing. |

Concluding remarks

| | | |
| --- | --- | --- |
| | (62) | In the light of Qualcomm’s submissions, the Draft Decision, among other things, holds Qualcomm liable for an infringement of shorter duration than that of the infringement alleged in the SO. |

| | | |
| --- | --- | --- |
| | (63) | In accordance with Article 16 of Decision 2011/695/EU, I have examined whether the Draft Decision deals only with objections in respect of which Qualcomm has been afforded the opportunity of making known its views. I conclude that it does. |

| | | |
| --- | --- | --- |
| | (64) | Overall, I consider that the effective exercise of procedural rights has been respected in this case. |

Brussels, 16 July 2019.

Joos STRAGIER

---

[(1)](#ntc1-C_2019375EN.01001601-E0001)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings ([OJ L 275, 20.10.2011, p. 29](http://publications.europa.eu/resource/oj/JOL_2011_275_R_TOC)) (‘Decision 2011/695/EU’).

[(2)](#ntc2-C_2019375EN.01001601-E0002)  These are ‘baseband chipsets’ (components contributing to mobile connectivity in cellular communications devices) that implement and comply with the ‘Universal Mobile Telecommunications System’ standard of cellular communications technology.

[(3)](#ntc3-C_2019375EN.01001601-E0003)  In May 2011, Icera was acquired by and became a wholly owned subsidiary of Nvidia Inc. (‘Nvidia’), which consequently assumed Icera’s position as a complainant.

[(4)](#ntc4-C_2019375EN.01001601-E0004)  Mr Wouter Wils acted as Hearing Officer in this case until 3 December 2015.

[(5)](#ntc5-C_2019375EN.01001601-E0005)  The Hearing Officer extended the time limit concerned to 18 November 2013. On a subsequent request from Qualcomm, DG Competition further extended this time limit to 2 December 2013.

[(6)](#ntc6-C_2019375EN.01001601-E0006)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, [OJ L 1, 4.1.2003, p. 1](http://publications.europa.eu/resource/oj/JOL_2003_001_R_TOC) (‘Regulation (EC) No 1/2003’).

[(7)](#ntc7-C_2019375EN.01001601-E0007)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty ([OJ L 123, 27.4.2004, p. 18](http://publications.europa.eu/resource/oj/JOL_2004_123_R_TOC)) as amended by Commission Regulation (EU) 2015/1348 of 3 August 2015 ([OJ L 208, 5.8.2015, p. 3](http://publications.europa.eu/resource/oj/JOL_2015_208_R_TOC)) (‘Regulation (EC) No 773/2004’).

[(8)](#ntc8-C_2019375EN.01001601-E0008)  As required by, in particular, the judgment of 24 June 1986 in Akzo Chemie v Commission, 53/85, EU:C:1986:256, paragraphs 30 and 31.

[(9)](#ntc9-C_2019375EN.01001601-E0009)  Nvidia/Icera also took part in that hearing.

[(10)](#ntc10-C_2019375EN.01001601-E0010)  By means of a non-confidential summary of the SO.

[(11)](#ntc11-C_2019375EN.01001601-E0011)  Order of 12 July 2017, Qualcomm and Qualcomm Europe v Commission, T-371/17 R, EU:T:2017:485.

[(12)](#ntc12-C_2019375EN.01001601-E0012)  Judgment of 9 April 2019, Qualcomm and Qualcomm Europe v Commission, T-371/17, EU:T:2019:232.

[(13)](#ntc13-C_2019375EN.01001601-E0013)  In my absence, Mr Wils took this decision.

[(14)](#ntc14-C_2019375EN.01001601-E0014)  In my absence, Mr Wils took this decision.

[(15)](#ntc15-C_2019375EN.01001601-E0015)  Unlike a (supplementary) statement of objections, a letter of facts does not trigger for its addressees an entitlement to develop their written response arguments at an oral hearing.

[(16)](#ntc16-C_2019375EN.01001601-E0016)  By 8 July 2016, Qualcomm had received in instalments access to all of the additional access-to-file material to which, in my decision dated 13 July 2016, I considered Qualcomm was entitled.

[(17)](#ntc17-C_2019375EN.01001601-E0017)  This need is among the matters to which, according to Article 9(1) of Decision 2011/695/EU, the Hearing Officer is to have regard when deciding whether an extension of a time limit for responding in writing to a statement of objections is necessary.

[(18)](#ntc18-C_2019375EN.01001601-E0018)  See to that effect, among others, judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P, EU:C:2002:582, paragraph 187, and of 8 September 2016, Merck v Commission, T-470/13, EU:T:2016:452, paragraph 471.

[(19)](#ntc19-C_2019375EN.01001601-E0019)  See judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P, EU:C:2002:582, paragraph 188.

[(20)](#ntc20-C_2019375EN.01001601-E0020)  See judgment of 9 April 2019, Qualcomm and Qualcomm Europe v Commission, T-371/17, EU:T:2019:232, paragraph 136.

[(21)](#ntc21-C_2019375EN.01001601-E0021)  See to that effect, in particular, judgments of 14 July 1972, Bayer v Commission, 51/69, EU:C:1972:72, paragraph 11; of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 18; of 21 September 2006, JCB Service v Commission, C-167/04 P, EU:C:2006:594, paragraphs 100 and 101; and of 13 July 2011, Polimeri Europe v Commission, T-59/07, EU:T:2011:361, paragraph 73.

---