Final Report of the Hearing Officer (1)

Case AT.40465 — Asus

(2018/C 338/07)

(1) The draft decision addressed to AsusTek Computer Inc., Asus Computer GmbH and Asus France SARL (together, ‘Asus’) finds that Asus infringed Article 101 TFEU through practices aimed at restricting the ability of retailers in Germany and in France to determine their resale prices independently.

(2) The investigation started with unannounced inspections at the premises of retailers in Germany and in France in March 2015.

(3) On 2 February 2017, the Commission initiated proceedings within the meaning of Article 2(1) of Regulation (EC) No 773/2004 (2) against Asus. On 15 February 2017, the Commission addressed a request for information to Asus Computer GmbH, to which Asus Computer GmbH replied on 13 March 2017.

(4) Shortly after the initiation of proceedings, Asus indicated its interest to cooperate with the Commission. On […], Asus submitted further evidence regarding the relevant conduct.

(5) By letter dated […], Asus submitted a formal offer to cooperate in view of the adoption of a decision (‘Settlement Submission’). The Settlement Submission contains: — an acknowledgement in clear and unequivocal terms of Asus’ liability for the two infringements summarily described as regards its object, the main facts, their legal qualification, including the role and the duration of AsusTek Computer Inc.’s, Asus Germany’s and Asus France’s participation in the two infringements, — an indication of the maximum amount of the fine Asus expects to be imposed by the Commission and which it would accept in the context of a cooperation procedure, — the confirmation that Asus 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 Asus 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 final decision, — the agreement to receive the SO and the final decision in English.

(6) On 24 May 2018, the Commission adopted the SO, to which Asus replied by confirming that the SO reflected the content of its Settlement Submission.

(7) 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 Asus 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 infringements; (ii) acknowledging the infringements 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 Asus 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).