Final Report of the Hearing Officer (1)

Case AT.40528 – Meliá (Holiday Pricing)

(2020/C 182/06)

(1) The draft decision addressed to Meliá Hotels International, S.A. (‘Meliá’) finds that Meliá infringed Article 101 of the Treaty on the Functioning of the European Union (‘TFEU’) and Article 53 of the Agreement on the European Economic Area (‘the EEA Agreement’) through a single and continuous infringement from 1 January 2014 to 31 December 2015 by concluding and/or implementing vertical contracts which differentiated between EEA consumers on the basis of their country of residence and thereby restricted active and passive sales of hotel accommodation.

(2) On 2 February 2017, the Commission initiated proceedings pursuant to Article 2(1) of Regulation (EC) No 773/2004 (2) against Meliá.

(3) On 5 August 2019, Meliá submitted a formal offer to cooperate (‘Settlement Submission’) in view of the adoption of a decision pursuant to Articles 7 and 23 of Regulation (EC) No 1/2003 ( 3 ) . The Settlement Submission contains: — an acknowledgement, in clear and unequivocal terms, of Meliá’s liability for the infringement described in the Settlement Submission, as regards the main facts, their legal qualification, Meliá’s role in the infringement and the duration of Meliá’s participation in the infringement; — an indication of the maximum fine that Meliá would expect the Commission to impose and that Meliá would accept in the context of a cooperation procedure; — confirmation that Meliá’s rights of defence have been fully respected, in particular that Meliá has 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; — confirmation that Meliá has been granted sufficient opportunity to access the evidence supporting the Commission’s objections and all other documents in the Commission’s file, and that it does not envisage requesting further access to the file or to be heard again in an oral hearing, unless the Commission does not reflect the Settlement Submission in the statement of objections and the decision; — Meliá’s agreement to receive the statement of objections and the decision adopted pursuant to Articles 7 and 23 of Regulation (EC) No 1/2003 in English.

(4) On 4 November 2019, the Commission adopted a statement of objections which was notified to Meliá on 6 November 2019. On 20 November 2019, Meliá replied and confirmed that the statement of objections reflected the content of its Settlement Submission and that it remained committed to the cooperation procedure.

(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 is reduced by 30 % on the ground that Meliá has cooperated with the Commission beyond its legal obligation to do so by acknowledging the infringement of Article 101 TFEU and Article 53 of the EEA Agreement relating to the conduct, as well as by cooperating on the provision of evidence, thereby strengthening to a certain extent the Commission’s ability to prove the infringement, and waiving certain procedural rights resulting in administrative efficiencies.

(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 Meliá 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, 12 February 2020. 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) (‘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).

(3) 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) (‘Regulation 1/2003’).