Final Report of the Hearing Officer (1)

Case AT.40181 — Philips

(2018/C 340/06)

(1) The draft decision addressed to Philips France S.A.S (‘Philips France’) and to Koninklijke Philips N.V. (together, ‘Philips’) finds that Philips infringed Article 101 TFEU through practices aimed at restricting the ability of retailers in France to determine their resale prices independently.

(2) The investigation started on 3 December 2013 with unannounced inspections at Koninklijke Philips S.p.A.’s premises in Italy and at Koninklijke Philips N.V.’s premises in the Netherlands.

(3) After the inspections and following an internal investigation, Philips indicated its interest to cooperate with the Commission. On […], Koninklijke Philips N.V. submitted further evidence regarding the relevant conduct.

(4) On 2 February 2017, the Commission initiated proceedings within the meaning of Article 2(1) of Regulation (EC) No 773/2004 (2) against Koninklijke Philips N.V. and Philips France. On 7 February and 16 May 2017, the Commission addressed requests for information to Philips, to which Philips replied on 6 March and 2 June 2017.

(5) On […], Philips submitted a formal offer to cooperate (‘Settlement Submission’). The Settlement Submission contains: — an acknowledgement in clear and unequivocal terms of Philips France’s liability for its direct participation in the infringement summarily described as regards its object, the main facts, its legal qualification, including its role and the duration of its participation in the infringement; — an acknowledgement in clear and unequivocal terms of Koninklijke Philips N.V.’s liability for the infringement as the parent company of Philips France at the time of the infringement; — an indication of the maximum amount of the fine Philips expects to be imposed by the Commission and which it would accept in the context of a cooperation procedure; — the confirmation that Philips has been sufficiently informed of the objections the Commission envisages raising against it and that it has been given sufficient opportunity to make its views known to the Commission; — the confirmation that Philips does not envisage requesting further access to the file or requesting to be heard again in an oral hearing, unless the Commission does not reflect its Settlement Submission in the statement of objections (the ‘SO’) and the decision; — the agreement to receive the SO and the final decision in English.

(6) On 7 June 2018, the Commission adopted the SO, to which Philips replied confirming that the SO reflected the content of its Settlement Submission.

(7) The infringement found and the fines imposed in the draft decision correspond to those acknowledged and accepted in the Settlement Submission. The amount of the fines is reduced by 40 % on the ground that Philips has cooperated with the Commission beyond its legal obligation to do so by: (i) providing additional evidence representing significant added value with respect to the evidence already in the Commission’s possession as that evidence strengthened to a large extent the Commission’s ability to prove the infringement; (ii) acknowledging the infringement of Article 101 TFEU in relation to the conduct; and (iii) waiving certain procedural rights, resulting in administrative efficiencies.

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

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

Brussels, 12 July 2018. 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) 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).