Final Report of the Hearing Officer (1)

Case AT.40428 — Guess

(2019/C 47/03)

(1) The decision addressed to Guess?, Inc., Guess? Europe, BV and Guess Europe Sagl (‘Guess’) finds that Guess infringed Article 101 TFEU and Article 53 of the EEA Agreement through practices aimed at restricting authorised distributors in its selective distribution system (i) from using the Guess brand names and trademarks for the purposes of online search advertising; (ii) from selling online without first obtaining a specific authorisation from Guess which Guess had full discretion to either grant or refuse and where no quality criteria had been specified for deciding whether or not to grant an authorisation; (iii) from selling to end-users located outside the authorised distributors' allocated territory; (iv) from cross-selling among authorised wholesalers and retailers; (v) from determining resale prices independently.

(2) By decision of 6 June 2017, the Commission initiated proceedings within the meaning of Article 2(1) of Regulation (EC) No 773/2004 (2) against Guess.

(3) On […], Guess submitted a formal offer to cooperate (‘Settlement Submission’). The Settlement Submission contains: — an acknowledgement of Guess?, Inc.'s, Guess? Europe, BV's and Guess Europe Sagl's joint and several liability for the infringement described in the Settlement Submission, as regards its object, the main facts, the legal characterisation of the infringement and of the main facts, including Guess' role and the duration of Guess' participation in the infringement, — a statement that the Settlement Submission is conditional upon the imposition of a fine by the Commission which does not exceed the amount specified in the Settlement Submission, — the confirmation that Guess?, Inc., Guess? Europe, BV and Guess Europe Sagl have been sufficiently informed of the objections the Commission envisages raising against them and that they have been given sufficient opportunity to make their views known to the Commission, — the confirmation that Guess?, Inc., Guess? Europe, BV and Guess Europe Sagl do not envisage requesting further access to the file or requesting to be heard again in an oral hearing, unless the Commission does not reflect the Settlement Submission in the statement of objections (the ‘SO’) and the decision; — the agreement to receive the SO and the final decision in English.

(4) On 12 November 2018, the Commission adopted the SO, to which Guess?, Inc., Guess? Europe, BV and Guess Europe Sagl jointly replied on 21 November 2018 by confirming that the SO reflected the content of the Settlement Submission, reiterating their commitment to follow the cooperation procedure and declaring that they did not wish to be heard again by the Commission.

(5) The infringements found and the fines imposed in the decision correspond to those acknowledged and accepted in the Settlement Submission. The amount of the fines is reduced by 50 % on the ground that Guess has cooperated with the Commission beyond its legal obligation to do so by: (i) revealing a restriction of competition which was not known to the Commission until then; (ii) providing additional evidence representing significant added value compared with the evidence already in the Commission's possession, and strengthening the Commission's ability to prove the infringement as a result; (iii) acknowledging the infringement of Article 101 of the Treaty and Article 53 of the EEA Agreement arising from the conduct; and (iv) waiving certain procedural rights, resulting in administrative efficiencies.

(6) In accordance with Article 16 of Decision 2011/695/EU, I have examined whether the decision deals only with objections in respect of which Guess 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, 11 December 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) (‘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).