EN Official Journal of the European Union C 180/15

Summary of Commission Decision

of 19 May 2010

relating to a proceeding under Article 101 of TFEU (1) and Article 53 of the EEA Agreement

(Case COMP/38.511 — DRAMs)

(notified under document C(2010) 3152 final)

(Only the English, German and French texts versions are authentic)

(Text with EEA relevance)

2011/C 180/09

On 19 May 2010, the Commission adopted a decision relating to a proceeding under Article 101 of the TFEU and Article 53 of the EEA Agreement. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (2), the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets. A non-confidential version of the decision is available on the Competition Directorate General website at the following address:

http://ec.europa.eu/competition/antitrust/cases/

INTRODUCTION

(1) The Decision is addressed to 10 undertakings and relates to a single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement.

1. CASE DESCRIPTION

1.1. Procedure

(2) This case was triggered by an immunity application submitted on 29 August 2002 by Micron. Conditional immunity was granted to Micron in December 2002. Between December 2003 and February 2006, Infineon, Hynix, Samsung, Elpida and NEC applied for leniency to the Commission. The first request for information was sent in March 2003 and a series of requests for information were sent at later stages.

(3) The settlement procedure allows the Commission to settle cases through a simplified procedure and was created in June 2008 (3). The settlement discussions in this case took place as from March 2009 after the companies indicated that they were prepared to engage in such discussions. Subsequently, in December 2009, they all introduced formal settlement submissions in which they clearly and unequivocally acknowledged their respective liability for the infringement. A Statement of Objections reflecting the parties’ submissions was notified to them on 8 February this year and the parties all confirmed that its content reflected their submissions and they remained interested in the settlement procedure. The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 7 May 2010 and the Commission adopted the Decision on 19 May 2010.

1.2. Summary of the infringement

(4) The Decision concerns a single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement in the EEA. Parties to the infringement entered into a scheme and/or network of contacts and secret information sharing by which they coordinated their conduct on general pricing levels and quotations to major PC/server Original Equipment Manufacturers (‘OEMs’), ultimately amounting to price coordination vis-à-vis such clients. This was done with the aim of restricting competition in respect of major PC/server OEMs with regard to the sale of Dynamic Random Access Memory (all 10 undertakings) and also for the sale of Rambus DRAMs (only Toshiba, Samsung and Elpida), from 1 July 1998 until 15 June 2002 in respect of DRAMs and from 9 April 2001 until 15 June 2002 in respect of Rambus DRAMs.

1.3. Addressees and duration in the infringements

(5) The following undertakings infringed Article 101 of the TFEU and Article 53 of the EEA Agreement by participating, during the periods indicated below, in anti-competitive courses of conduct amounting to price coordination in respect of major PC/server OEMs respectively for DRAM and Rambus DRAM products: (a) Micron Technology, Inc. from 1 July 1998 until 15 June 2002; (b) Micron Europe Limited from 1 July 1998 until 15 June 2002; (c) Micron Semiconductor (Deutschland) GmbH from 1 July 1998 until 15 June 2002; (d) Infineon Technologies AG from 14 November 1998 until 15 June 2002; (e) Hynix Semiconductor Inc. from 1 July 1998 until 15 June 2002; (f) Hynix Semiconductor Europe Holding Ltd. from 1 July 1998 until 15 June 2002; (g) Hynix Semiconductor Deutschland GmbH from 1 July 1998 until 15 June 2002; (h) Hynix Semiconductor United Kingdom, Ltd. from 1 July 1998 until 15 June 2002; (i) Samsung Electronics Co. Ltd. from 1 July 1998 until 15 June 2002 for DRAMs (and from 9 April 2001 until 15 June 2002 for Rambus DRAMs); (j) Samsung Semiconductor Europe GmbH from 1 July 1998 until 15 June 2002 for DRAMs (and from 9 April 2001 until 15 June 2002 for Rambus DRAMs); (k) Samsung Semiconductor Europe Ltd. from 1 July 1998 until 15 June 2002 for DRAMs (and from 9 April 2001 until 15 June 2002 for Rambus DRAMs); (l) Samsung Semiconductor France Sarl from 1 July 1998 until 15 June 2002 for DRAMs (and from 9 April 2001 until 15 June 2002 for Rambus DRAMs); (m) NEC Corporation from 1 July 1998 until 28 February 2001 and indirectly through Elpida as from 1 March 2001 until 15 June 2002; (n) Renesas Electronics Europe GmbH (formerly NEC Electronics (Europe) GmbH until 1 April 2010) from 1 July 1998 until 28 February 2001; (o) NEC Electronics (UK) Ltd. from 1 July 1998 until 28 February 2001; (p) Hitachi Ltd. from 9 November 1998 until 28 February 2001 and indirectly through Elpida as from 1 March 2001 until 15 June 2002; (q) Hitachi Europe Ltd. from 9 November 1998 until 28 February 2001; (r) Mitsubishi Electric Corp. from 24 November 1998 until 15 June 2002; (s) Mitsubishi Electric Europe BV from 24 November 1998 until 15 June 2002; (t) Toshiba Corp. from 1 July 1998 until 22 April 2002 for DRAMs (and from 9 April 2001 until 22 April 2002 for Rambus DRAMs); (u) Toshiba Electronics Europe GmbH from 1 July 1998 until 22 April 2002 for DRAMs (and from 9 April 2001 until 22 April 2002 for Rambus DRAMs); (v) Elpida Memory Inc. from 1 March 2001 until 15 June 2002 for DRAMs (and from 9 April 2001 until 15 June 2002 for Rambus DRAMs); (w) Elpida Memory (Europe) GmbH from 1 March 2001 until 15 June 2002 for DRAMs (and from 9 April 2001 until 15 June 2002 for Rambus DRAMs); and (x) Nanya Technology Corp. from 12 October 2001 until 15 June 2002.

1.4. Remedies

(6) The Decision applies the 2006 Guidelines on Fines (4). With the exception of Micron Technology, Inc., Micron Europe Limited and Micron Semiconductor (Deutschland) GmbH, the Decision imposes fines on all companies listed under recital (5) above. However, the Decision does not take into account Samsung's Rambus DRAMs sales when setting the fine to be imposed on Samsung as set out in recital (13) below.

1.4.1. Basic amount of the fine

(7) The basic amount of fine is set at 16 % of the undertakings’ sales of DRAMs (including Rambus DRAMs where applicable) (5) to major PC/server OEMs in the EEA.

(8) The basic amount is multiplied by the number of years of participation in the infringement in order to take fully into account the duration of the participation for each undertaking in the infringement individually.

1.4.2. Adjustments to the basic amount

1.4.2.1. Aggravating circumstances

(9) There are no aggravating circumstances in this case.

1.4.2.2. Mitigating circumstances

(10) Due to mitigating circumstances, the fine for three (out of 10) undertakings were reduced. Hynix received a reduction of 5 % as a result of the very specific circumstances applicable to the undertaking during 2001 (6). Toshiba and Mitsubishi received a reduction of 10 % each as the involvement of both Toshiba and Mitsubishi was much lower than that of other suppliers throughout the relevant period.

1.4.2.3. Specific increase for deterrence

(11) Based on the size of the undertakings concerned, it is appropriate to apply a multiplier factor to the fines imposed. On that basis, the fine for Hitachi is multiplied by 1.2 while the fine for Samsung and Toshiba is multiplied by 1.1.

1.4.3. Application of the 10 % turnover limit

(12) It is not required to adjust the amounts in the light of the undertakings’ turnover in this case.

1.4.4. Application of the 2002 Leniency Notice

(13) Micron is granted immunity from fines, Infineon is granted a 45 % reduction of fine, Hynix is granted a 27 % reduction of fine and Samsung, Elpida and NEC are each granted a 18 % reduction of fine. In addition, Samsung is granted a ‘de facto’ immunity in relation to Rambus DRAMs, on top of the reduction within its leniency band in relation to DRAMs.

2. FINES IMPOSED BY THE DECISION

(14) For the single and continuous infringement dealt with in this Decision, the following fines are imposed: (a) Jointly and severally on Micron Technology Inc., Micron Europe Limited and Micron Semiconductor (Deutschland) GmbH: EUR 0; (b) On Infineon Technology AG: EUR 56 700 000; (c) Jointly and severally on Hynix Semiconductor Inc., Hynix Semiconductor Europe Holding Ltd., Hynix Semiconductor Deutschland GmbH and Hynix Semiconductor United Kingdom, Ltd: EUR 51 471 000; (d) Jointly and severally on Samsung Electronics Co. Ltd., Samsung Semiconductor Europe GmbH, Samsung Semiconductor Europe Ltd. and Samsung Semiconductor France Sarl: EUR 145 728 000; (e) Jointly and severally on NEC Corporation, Renesas Electronics Europe GmbH (formerly NEC Electronics (Europe) GmbH until 1 April 2010) and NEC Electronics (UK) Ltd.: EUR 10 296 000; (f) Jointly and severally on Hitachi Ltd. and Hitachi Europe Ltd: EUR 20 412 000; (g) Jointly and severally on Mitsubishi Electric Corp. and Mitsubishi Electric Europe BV: EUR 16 605 000; (h) Jointly and severally on Toshiba Corp. and Toshiba Electronics Europe GmbH: EUR 17 641 800; (i) Jointly and severally on Elpida Memory, Inc. and Elpida Memory (Europe) GmbH, NEC Corporation and Hitachi Ltd: EUR 8 496 000; (j) On Nanya Technology Corp.: EUR 1 800 000; and (k) Jointly and severally on NEC Corporation and Hitachi Ltd.: EUR 2 124 000.

(1) With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and, respectively, 102 of the TFEU. The two sets of provisions are in substance identical. For the purposes of this Decision references to Articles 81 and 82 of the EC Treaty should be now understood as references to Articles 101 and 102 of the TFEU when appropriate.

(2) OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1). With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and, respectively, 102 of the TFEU. The two sets of provisions are in substance identical. For the purposes of this Decision references to Articles 81 and 82 of the EC Treaty should be now understood as references to Articles 101 and 102 of the TFEU when appropriate.

(3) Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel cases (OJ L 171, 1.7.2008, p. 3) and Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ C 167, 2.7.2008, pp. 1-6).

(4) OJ C 210, 1.9.2006, p. 2.

(5) For the calculation of the fine to be imposed on Micron, Hynix, Infineon, Mitsubishi and Nanya, account was taken only of the value of sales of DRAMs products to the exclusion of Rambus DRAMs products if any. As mentioned, Samsung's Rambus DRAMs sales were moreover not taken into account when calculating the fine to be imposed on Samsung.

(6) As established in earlier Commission proceedings on anti-subsidies in the EU, please refer to Commission Regulation (EC) No 708/2003 of 23.4.2003, para 148 and ff., confirmed by Commission Regulation (EC) No 1408/2003 of 11.8.2003.