Final Report of the Hearing Officer (1)

Case AT.40436 — ancillary sports merchandise

(Text with EEA relevance)

(2019/C 216/04)

(1) The draft decision addressed to Nike European Operations Netherlands BV (‘NEON’), Nike Barcelona Merchandising, S.L. (previously known as Futbol Club Barcelona Merchandising, S.L.) (‘FCBM’), North West Merchandising Limited (previously known as Manchester United Merchandising Limited) (‘MUML’), F.C. Internazionale Merchandising S.r.l. (‘FCIM’), French Football Merchandising SASU (‘FFM’), and Nike, Inc., finds that Nike (2) infringed Article 101(1) TFEU and Article 53 of the EEA Agreement through the implementation and enforcement of a series of agreements and practices aimed at restricting cross-border sales of licensed merchandise, both offline and online.

(2) By decision of 14 June 2017, the Commission initiated proceedings within the meaning of Article 2(1) of Regulation (EC) No 773/2004 (3) against Nike, Inc. and all legal entities directly or indirectly controlled by it, and in particular against NEON and FCBM. By decision of 14 February 2019, the Commission adopted a further decision to initiate proceedings in accordance with that same article against FCIM, FFM and MUML.

(3) On […], Nike submitted a formal offer to cooperate (‘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 caveats, 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, — 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, and — the addressees' agreement to receive the SO and the final decision pursuant to Articles 7 and 23 of Regulation (EC) No 1/2003 (4) in English.

(4) On 14 February 2019, the Commission adopted the SO, to which Nike replied by confirming that the SO reflected the content of the Settlement Submission, reiterating its commitment to follow the cooperation procedure under the conditions of the Settlement Submission and declaring that it did not wish to be heard again by the Commission.

(5) The infringements 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 Nike has effectively and timely cooperated with the Commission by: (i) taking steps to bring the infringement to an end by sending out letters of clarification to all its licensees and master licensees even before formal proceedings were opened and of its own initiative; and (ii) providing additional evidence to extend the case beyond its initial scope.

(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 Nike 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, 21 March 2019. 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) The undertaking comprising Nike, Inc. and those of its subsidiaries that are involved in the licensing and distribution of licensed merchandise in the EEA in the context of this case is referred to as ‘Nike’.

(3) 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 of 3 August 2015 (OJ L 208, 5.8.2015, p. 3).

(4) 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).