Final Report of the Hearing Officer (1)

Film merchandise

(AT.40433)

(2020/C 133/07)

(1) The draft decision addressed to Comcast Corporation, NBCUniversal LLC, NBCUniversal Media LLC, Universal Studios Licensing LLC, Universal Studios Limited, DreamWorks Animation UK Limited, DreamWorks Animation Publishing LLC, DreamWorks Animation LLC, DreamWorks Animation Licensing LLC and Universal Pictures (Shanghai) Trading Company Limited (the ‘addressees’, whereas the undertaking comprising the addressees is referred to as ‘Universal’) finds that Universal infringed Article 101 TFEU and Article 53 of the EEA Agreement through implementation and enforcement within the EEA of a series of agreements and/or concerted practices restricting sales of licensed merchandise across territories and across customer groups, both offline and online.

(2) By decision of 14 June 2017, the Commission initiated proceedings within the meaning of Article 2(1) of Regulation No 773/2004 (2) against Comcast Corporation and all legal entities directly or indirectly controlled by it. On 29 November 2019, the Commission adopted a further decision to initiate proceedings in accordance with Article 2(1) of that regulation against the other entities that are referred to as the addressees.

(3) On 13 November 2019, the addressees submitted a formal offer to cooperate (the ‘Settlement Submission’). The Settlement Submission contained: — an acknowledgement, in clear and unequivocal terms, by the addressees of their joint and several liability for the infringement described in the Settlement Submission, including facts, legal qualifications, the addressees’ roles in the infringement and the duration of their participation in the infringement; — an indication of the maximum fine that the addressees would accept in the context of a cooperation procedure; — confirmation that the addressees had been sufficiently informed of the objections the Commission envisaged raising against them and that they had been given sufficient opportunity to make their views known to the Commission; and — confirmation that the addressees had been granted sufficient opportunity to access the evidence supporting the potential objections and all other documents in the Commission’s file, and that they did not envisage requesting further access to the file or to be heard again in an oral hearing, unless the Commission did not reflect the Settlement Submission in the statement of objections (the ‘SO’) and the decision.

(4) On 29 November 2019, the Commission adopted the SO, to which the addressees replied by confirming that the SO reflected the content of the Settlement Submission, reiterating their commitment to follow the cooperation procedure under the conditions of the Settlement Submission and declaring that they did not wish to be heard again by the Commission.

(5) The infringement found and the fine imposed in the draft decision correspond to those acknowledged and accepted in the Settlement Submission. The basic amount of the fine that would otherwise have been imposed is reduced by 30 % on the ground that Universal has effectively and timely cooperated with the Commission beyond its legal obligation to do so by: (i) acknowledging the infringement of Article 101 of the Treaty and Article 53 of the EEA Agreement in relation to the conduct, as well as providing additional evidence to the Commission, thereby strengthening to a certain extent its ability to prove the infringement, and waiving certain procedural rights resulting in administrative efficiencies; (ii) providing guidance on practices compliant with competition law to Universal’s EEA-based employees and changing its template agreement; and (iii) sending clarification letters to all licensees, in September 2019, clarifying how the merchandising license agreements are to be interpreted and enforced.

(6) 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 Universal has been afforded the opportunity of making known its views. I conclude that it does.

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

Brussels, 24 January 2020. Wouter WILS

(1) Pursuant to Articles 16 and 17 of Decision 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) (‘Decision 2011/695/EU’).

(2) 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), last amended by Commission Regulation (EU) 2015/1348 (OJ L 208, 5.8.2015, p. 3).