EN Official Journal of the European Union C 350/6

Final Report of the Hearing Officer (1)

Samsung — Enforcement of UMTS standard essential patents

(AT.39939)

(2014/C 350/07)

(1) Following an ex officio investigation, on 30 January 2012, the Commission initiated proceedings within the meaning of Article 11(6) of Regulation (EC) No 1/2003 (2) and Article 2(1) of Regulation (EC) No 773/2004 (3) against Samsung Electronics Co., Ltd, Samsung Electronics France, Samsung Electronics GmbH, Samsung Electronics Holding GmbH and Samsung Electronics Italia SpA (collectively ‘Samsung’).

(2) On 21 December 2012, the Commission adopted a Statement of Objections (‘SO’), in which it reached the preliminary view that Samsung’s seeking of preliminary and permanent injunctions against Apple Inc. (‘Apple’) before the courts of various Member States on the basis of its standard essential patents (‘SEPs’) covering the Universal Mobile Telecommunications Service (‘UMTS’) technology without any objective justification, raised concerns under Article 102 TFEU and Article 54 of the EEA Agreement.

(3) Samsung was granted access to the file via an access to file DVD on 21 December 2012. It replied to the SO in writing on 22 March 2013, after the Directorate-General for Competition (‘DG Competition’) had extended the initial deadline of 10 weeks.

(4) Upon their request, I decided pursuant to Article 5(2) of Decision 2011/695/EU to allow Apple, HTC Corporation, Nokia GmbH and Google Inc. to be heard as interested third persons. One other company also applied to be heard as an interested third person. However, I considered that that company had not demonstrated to be sufficiently affected by the conduct which is the subject of the proceedings, as it was neither an actual nor a potential licensee of Samsung with respect to the latter’s UMTS SEPs.

(5) Following the admission of Apple as an interested third person, DG Competition informed Samsung of its intention to provide Apple with a non-confidential version of the SO, and accordingly invited Samsung to identify business secrets and other confidential information. Samsung referred to me certain confidentiality claims which DG Competition had rejected, concerning passages in the SO that revealed the preliminary findings of the Commission and Samsung’s defensive strategy. Samsung claimed that disclosure of these passages to Apple would undermine the integrity of the Commission’s investigation, Samsung’s rights of defence and the presumption of innocence to which Samsung is entitled.

(6) By decision pursuant to Article 8(2) of Decision 2011/695/EU, I rejected Samsung’s claims for the following reasons. Given the provisional nature of the SO, disclosure to Apple of the Commission’s preliminary findings would not prevent the Commission from altering its objections in favour of Samsung at a later stage of the proceedings, nor deprive Samsung of its right to be heard regarding the matters of fact and law contained in the SO. Even if Apple were to produce the Commission’s preliminary findings before national courts, the latter would be required to take into account the provisional nature of the SO and to ensure, in accordance with the applicable rules of procedure, the protection of Samsung’s rights of defence in the context of national proceedings (4). Moreover, in case disclosure of the contested passages led Apple to make any submissions which the Commission intended to rely upon, Samsung would be given access to those submissions or relevant parts thereof and would be given the opportunity to react in writing and/or orally.

(7) On 27 September 2013, Samsung proposed commitments in order to meet the Commission’s concerns. On 18 October 2013, the Commission published a notice in accordance with Article 27(4) of Regulation (EC) No 1/2003 (5), and received 18 responses from third parties. On 3 February 2014, Samsung submitted revised commitments.

(8) The draft decision makes the revised commitments offered by Samsung binding upon it and concludes that in light of these, there are no longer grounds for action on its part, and thus the proceedings in this case should be brought to an end.

(9) I have not received any request or complaint from any party to the proceedings with respect to the submitted commitments (6).

(10) In light of all the above, I consider that the effective exercise of the procedural rights of all parties in this case has been respected.

Brussels, 28 April 2014. Wouter WILS

(1) 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).

(2) 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).

(3) 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).

(4) Case T-353/94 Postbank v Commission [995] ECR II-921, paragraph 72.

(5) Communication of the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT.39939/Samsung — Enforcement of UMTS standard essential patents (OJ C 302, 18.10.2013, p. 14).

(6) According to Article 15(1) of Decision 2011/695/EU, parties to the proceedings offering commitments pursuant to Article 9 of Regulation (EC) No 1/2003 may call upon the hearing officer at any stage of the procedure in order to ensure the effective exercise of their procedural rights.