JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)

15 June 2022 ( *1 )

(Competition – Abuse of a dominant position – LTE chipsets market – Decision finding an infringement of Article 102 TFEU and Article 54 of the EEA Agreement – Exclusivity payments – Rights of the defence – Article 19 and Article 27(1) of Regulation (EC) No 1/2003 – Foreclosure effects)

In Case T‑235/18,

Qualcomm Inc., established in San Diego, California (United States), represented by M. Pinto de Lemos Fermiano Rato, M. Davilla and M. English, lawyers,

applicant,

v

European Commission, represented by N. Khan, A. Dawes and C. Urraca Caviedes, acting as Agents,

defendant,

THE GENERAL COURT (Sixth Chamber, Extended Composition),

composed of A. Marcoulli (Rapporteur), President, S. Frimodt Nielsen, J. Schwarcz, C. Iliopoulos and R. Norkus, Judges,

Registrar: C. Kristensen, Head of Unit,

having regard to the written part of the procedure,

further to the hearing on 4, 5 and 6 May 2021,

gives the following

Judgment

1 By its action based on Article 263 TFEU, the applicant, Qualcomm Inc., seeks annulment of Commission Decision C(2018) 240 final of 24 January 2018 relating to proceedings under Article 102 [TFEU] and Article 54 of the [EEA Agreement] (Case AT.40220 – Qualcomm (Exclusivity payments)), by which the European Commission found that Qualcomm had abused its dominant position from 25 February 2011 to 16 September 2016 (‘the period concerned’) and imposed on it a fine of EUR 997439000 (‘the contested decision’).

I. Background to the dispute

A. The applicant

2 The applicant is a US company established in 1985 operating in the field of cellular and wireless technologies. It develops and supplies chipsets and software used in voice and data communications. The applicant’s chipsets are sold and its system software is licensed to undertakings for use in mobile phones, tablets, laptops, data modules and other consumer electronics. The applicant supplies, inter alia, baseband chipsets (‘chipsets’).

3 Chipsets enable smartphones and tablets to connect to cellular networks and are used both for voice services and data transmission. A chipset combines three components, namely a baseband processor, a radio frequency integrated circuit and a power management integrated circuit, which are usually contained in separate chips or, less commonly, in the same chip. In addition to the baseband processor, some devices require an application processor, which can be integrated into the same chip as the baseband processor or packaged in a separate chip. A chipset may therefore be an ‘integrated’ or ‘standalone’ chipset (also known as a ‘slim’ chipset), depending on whether or not it integrates an application processor. Chipsets can be compatible with one or more cellular communication standards, such as the GSM (Global System for Mobile Communications), UMTS (Universal Mobile Telecommunications System) or LTE (Long-Term Evolution) standards. They are sold to original equipment manufacturers (‘OEMs’), such as Apple Inc. (Apple), HTC Corporation (HTC), Huawei Technologies Co. Ltd (Huawei), LG Corp. (LG), Samsung Group (Samsung) and ZTE Corporation (ZTE), which incorporate them into their devices.

4 The present case concerns, more specifically, the supply of chipsets compliant with the LTE standard together with the UMTS and GSM standards (‘LTE chipsets’) by the applicant to Apple during the period from 2011 to 2016.

B. The administrative procedure

1. The procedure concerning the applicant

5 In August 2014 the European Commission commenced an investigation into arrangements for the purchase and use of the applicant’s chipsets.

6 Between 13 October 2014 and 14 January 2015, pursuant to Article 18(2) and (3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), the Commission sent requests for information to the applicant.

7 On 16 July 2015, the Commission initiated proceedings against the applicant with a view to adopting a decision under Chapter III of Regulation No 1/2003.

8 On 8 December 2015, the Commission sent a statement of objections to the applicant, to which it replied on 27 June 2016. On 27 July 2016 the applicant supplemented that reply.

9 Between 22 November 2016 and 5 May 2017, the Commission sent the applicant further information requests.

10 On 10 February 2017, the Commission sent the applicant a letter of facts, to which it replied on 13 March 2017.

11 On 29 May 2017, the applicant made follow-up submissions on evidence included in the file after the statement of objections.

12 In the course of the administrative procedure, the applicant met with the Commission’s services on a number of occasions. On some of those occasions, the chief economist’s team was present.

13 On 24 January 2018, the Commission adopted the contested decision.

2. The other undertakings and interested parties

14 Before the Commission commenced the investigation referred to in paragraph 5 above, it held a meeting with a third-party informant who had requested anonymity (‘the third-party informant’), such meeting having been organised at the third-party informant’s request.

15 Between 12 August 2014 and 23 July 2015, the Commission sent information requests to a number of the applicant’s customers and competitors.

16 Before the statement of objections was sent to the applicant, the Commission held meetings and conference calls with third parties.

17 The Commission admitted Apple and Nvidia as interested third parties pursuant to Article 13(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18). Apple is a customer of the applicant and a purchaser of chipsets, including LTE chipsets. Nvidia is a competitor of the applicant and supplies certain types of chipset.

18 On 15 March 2016, the Commission sent Apple a non-confidential version of the statement of objections. On 2 May 2016, Apple made its views known on the statement of objections.

19 On 31 March 2016, the Commission sent Nvidia a non-confidential version of the statement of objections. On 31 May 2016 Nvidia, made its views known on the statement of objections.

20 On 19 October 2016, the Commission sent Apple a non-confidential version of the applicant’s reply to the statement of objections. On 21 November 2016, Apple made its views known on the reply to the statement of objections.

21 Between 22 November 2016 and 5 May 2017, the Commission sent information requests to Apple and to some of the applicant’s competitors.

3. Access to the file

22 On 21 December 2015, after notification of the statement of objections, the Commission gave the applicant access (on CD-ROM) to the case file. Following requests from the applicant, the Commission forwarded to it non-confidential versions of certain other documents which the Commission had not yet sent to it, as well as less redacted non-confidential versions of certain documents which the Commission had already sent to it.

23 On 23 and 24 May 2016, the Hearing Officer arranged for the applicant’s external advisers to have access to a first data room in respect of certain documents. On 1 June 2016, the Hearing Officer arranged for the applicant’s external advisers to have access to a second data room in respect of certain other documents. On 28 and 30 June 2016, the applicant’s external advisers were given access to a third data room to enable them to make confidential substantive submissions on the documents made available in the first and second data rooms.

24 On 13 February 2017, after notification of the letter of facts, the Commission granted the applicant further access to the case file (on CD-ROM) as regards the documents obtained following notification of the statement of objections. On 17 February 2017, the Hearing Officer arranged for the applicant’s external advisers to have access to a fourth data room in respect of some of those documents.

25 On 25 January 2018, after the adoption of the contested decision, the applicant asked the Commission to provide it with the list of meetings and interviews held with third parties concerning the subject matter of the investigation. On 2 March 2018, the Commission replied that certain meetings and conference calls with third parties had taken place and provided the notes of those meetings.

C. The contested decision

26 The contested decision comprises 14 sections: introduction (Section 1); undertakings concerned (Section 2); procedure (Section 3); the applicant’s complaints of procedural irregularities (Section 4); standards (Section 5); technology and products covered (Section 6); the applicant’s activities in relation to chipsets (Section 7); the applicant’s agreements with Apple (Section 8); market definition (Section 9); dominance (Section 10); abuse of a dominant position (Section 11); jurisdiction (Section 12); effect on trade between Member States (Section 13); and remedies and fines (Section 14).

1. The agreements between the applicant and Apple

27 In Section 8 of the contested decision, the Commission stated that, on 25 February 2011, the applicant had concluded an agreement with Apple (‘the transition agreement’) relating to the delivery of chipsets and that that agreement was amended on 28 February 2013 by the conclusion of a subsequent agreement (‘the first amendment to the transition agreement’) which entered into force with retroactive effect on 1 January 2013 (together ‘the agreements concerned’).

28 The Commission pointed out that the agreements concerned provided for incentive payments to be made by the applicant to Apple on condition that Apple source all of its LTE chipsets from the applicant (‘the payments concerned’). In that regard, the Commission made clear that, for the purposes of the contested decision, LTE chipsets include chipsets complying with the LTE standard and the GSM and UMTS standards.

29 The Commission stated that, between 2011 and 2015, Apple had obtained LTE chipsets exclusively from the applicant and that the applicant had paid Apple between 2 and 3 thousand million United States dollars (USD).

30 The Commission added that, although the agreements concerned were to expire on 31 December 2016, for the purposes of the contested decision, the agreements concerned had come to an end following the release by Apple on 16 September 2016 of iPhone 7 devices incorporating Intel’s LTE chipsets.

2. Market definition

31 In Section 9 of the contested decision, the Commission found that the relevant market was the open market for LTE chipsets and that that market was worldwide in scope (‘the relevant market’). In particular, the Commission stated that the relevant market included standalone LTE chipsets and integrated LTE chipsets but excluded captive production of those chipsets. In that regard, the Commission took the view, inter alia, that LTE chipsets were not substitutable for chipsets compatible with the GSM standard or for chipsets compatible with the UMTS standard (‘UMTS chipsets’).

3. Dominance

32 In Section 10 of the contested decision, the Commission concluded that the applicant had held a dominant position in the relevant market between 1 January 2011 and 31 December 2016. To that end, the Commission stated that the applicant had enjoyed large shares in the relevant market since 2010, that that market was characterised by the existence of a number of barriers to entry and expansion, and that the commercial strength of the applicant’s chipset customers was not capable of adversely affecting its dominant position.

4. Abuse of a dominant position

33 In Section 11 of the contested decision, the Commission concluded that the applicant had abused its dominant position in the relevant market by making the payments concerned. To that end, the Commission stated that the payments concerned were exclusivity payments, that those payments were capable of having anticompetitive effects, that the applicant’s critical margin analysis did not affect the Commission’s conclusion and that the applicant had not demonstrated that those payments were counterbalanced or compensated for by advantages in terms of efficiency also benefiting consumers.

34 The Commission stated that the abuse engaged in by the applicant had taken place during the period concerned.

5. The fine

35 The Commission found that a fine ought to be imposed on the applicant and, after calculation, decided that the fine ought to be set at EUR 997439000.

6. Operative part

36 The operative part of the contested decision reads as follows: ‘Article 1 Qualcomm Inc. has committed an infringement of Article 102 of the Treaty [on the Functioning of the European Union] and Article 54 of the Agreement on the European Economic Area by granting payments to Apple Inc. on the condition that Apple Inc. obtain from Qualcomm Inc. all of Apple Inc.’s requirements of baseband chipsets compliant with the Long-Term Evolution standard together with the Global System for Mobile Communications and Universal Mobile Telecommunications System standards. The infringement lasted from 25 February 2011 to 16 September 2016. Article 2 For the infringement referred to in Article 1, a fine of EUR 997439000 is imposed on Qualcomm Inc. … Article 3 Qualcomm Inc. shall refrain from repeating any act or conduct described in Article 1, and from any act or conduct having the same or equivalent object or effect. Article 4 This Decision is addressed to Qualcomm Inc. …’

II. Procedure and forms of order sought

A. Procedural milestones

1. Written part of the procedure

37 By application lodged at the Registry of the General Court on 6 April 2018, the applicant brought the present action.

38 On 5 June 2018, the Commission applied for an extension of the time limit for lodging the defence, given the length of the application and the number of annexes. That extension was granted.

39 On 14 September 2018, the Commission lodged the defence at the Court Registry.

40 On 5 October 2018, the applicant applied for an extension of the time limit for lodging the reply, given the length of the defence and the number of annexes. That extension was granted.

41 On 4 January 2019, the applicant lodged the reply at the Court Registry.

42 On 12 February 2019, the Commission applied for an extension of the time limit for lodging the rejoinder, given the length of the reply and the number of annexes. That extension was granted.

43 On 8 May 2019 the Commission lodged the rejoinder at the Court Registry.

44 The written part of the procedure was closed on 20 May 2019.

45 On 7 June 2019 the applicant made a request for a hearing.

2. Apple’s application to intervene

46 By document lodged at the Court Registry on 16 July 2018, Apple applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

47 That application to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.

48 By document lodged at the Court Registry on 17 September 2018, the Commission stated that it had no comments on Apple’s application to intervene.

49 By document lodged at the Court Registry on 17 September 2018, the applicant asked the Court to refuse the application to intervene and to order Apple to pay the costs.

50 On 16 November and 14 December 2018 and 13 February 2019, the applicant and the Commission requested that some of the information contained in the procedural documents and the annexes thereto be given confidential treatment in relation to Apple, if Apple were granted leave to intervene.

51 By document lodged at the Court Registry on 17 April 2019, Apple informed the Court that, in accordance with Article 144(8) of the Rules of Procedure, it was withdrawing its application to intervene in the present case.

52 On 5 June 2019 the President of the Seventh Chamber of the General Court ordered that Apple be removed from the Register in the present case as applicant for leave to intervene and that the parties bear their own costs in connection with that application to intervene.

3. Application for measures of organisation of procedure or measures of inquiry

53 By separate document lodged at the Court Registry on 16 January 2019, the applicant requested the adoption of a measure of organisation of procedure or a measure of inquiry in order to obtain, first, the complete, that is to say ‘unredacted’, versions of certain third-party documents and, second, two documents containing ‘confidential substantive submissions’ made during the third data room procedure held on 28 June 2016.

4. Further evidence lodged after closure of the written part of the procedure

54 By document lodged at the Court Registry on 28 May 2019, namely after closure of the written part of the procedure, the Commission produced, pursuant to Article 85(3) of the Rules of Procedure, further evidence consisting in the communication of a 233-page judgment delivered by the United States District Court for the Northern District of California (United States) (‘the District Court’) on 21 May 2019 in Federal Trade Commission v Qualcomm Incorporated.

55 By document lodged at the Court Registry on 20 June 2019, the applicant provided its comments on the further evidence produced by the Commission.

56 By document lodged at the Court Registry on 26 July 2019, the applicant produced, pursuant to Article 85(3) of the Rules of Procedure, further evidence consisting in a 62-page submission accompanied by a large number of documents from proceedings conducted in the United States (‘the further evidence of 26 July 2019’).

57 By document lodged at the Court Registry on 14 August 2019, the Commission requested an extension of the time limit for providing comments in that regard in view of the large number of documents annexed to the further evidence of 26 July 2019. That extension was granted.

58 By document lodged at the Court Registry on 30 October 2019, the Commission provided its comments on the further evidence of 26 July 2019, consisting in a 63-page submission with annexes and disputing, inter alia, their admissibility.

59 By document lodged at the Court Registry on 20 May 2020, the applicant provided its comments on the Commission’s comments of 30 October 2019. On 3 June 2020 the President of the Sixth Chamber of the General Court decided not to include that document in the file and informed the applicant that it would have the opportunity to put forward its arguments in that regard during the oral part of the procedure.

60 By document lodged at the Court Registry on 25 August 2020, the applicant produced, pursuant to Article 85(3) of the Rules of Procedure, further evidence consisting in the communication of a 56-page judgment delivered on 11 August 2020 by the United States Court of Appeals for the Ninth Circuit (United States) in Federal Trade Commission v Qualcomm Incorporated, which overturned the judgment of the District Court mentioned in paragraph 54 above.

61 By document lodged at the Court Registry on 11 September 2020, the Commission provided its comments on the further evidence produced by the applicant on 25 August 2020.

62 By document lodged at the Court Registry on 9 November 2020, the applicant produced further evidence under Article 85(3) of the Rules of Procedure, consisting in the communication of a two-page order dated 28 October 2020 of the United States Court of Appeals for the Ninth Circuit in Federal Trade Commission v Qualcomm Incorporated, denying the application for rehearing in connection with the judgment referred to in paragraph 60 above.

63 By document lodged at the Court Registry on 20 November 2020, the Commission submitted its comments on the further evidence produced by the applicant on 9 November 2020.

5. Applications for omission of certain information vis-à-vis the public

64 By document lodged at the Court Registry on 31 May 2019, the applicant made an application, under Article 66 of the Rules of Procedure, for the omission of certain information vis-à-vis the public concerning the procedural documents and annexes thereto lodged up to and after the date of that application.

65 By document lodged at the Court Registry on 6 August 2019, the applicant made an application, under Article 66 of the Rules of Procedure, for the omission of certain information vis-à-vis the public concerning the further evidence of 26 July 2019.

66 On 28 May 2020, acting on a proposal from the Judge-Rapporteur, the Court (Sixth Chamber), in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put questions to the applicant to be answered in writing, asking it to identify accurately the information in certain procedural documents and in the contested decision targeted by the applications for the omission of certain information vis-à-vis the public, in accordance with paragraph 75 of the Practice Rules for the Implementation of the Rules of Procedure.

67 On 15 June 2020, the applicant requested an extension of the time limit for replying to the questions put by the Court on 28 May 2020. An extension was granted.

68 By document lodged at the Court Registry on 8 June 2020, the Commission sent the Court a copy of the non-confidential version of the contested decision published on its website on the same day. On 16 June 2020, the President of the Sixth Chamber, Extended Composition, of the General Court decided to include that document in the file.

69 On 10 September 2020, the applicant requested a further extension of the time limit for replying to the questions put by the Court on 28 May 2020. A final extension was granted.

70 By document lodged at the Court Registry on 30 October 2020, the applicant replied to the measure of organisation of procedure.

6. Assignment of the Judge-Rapporteur to the Sixth Chamber

71 Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Sixth Chamber of the Court, to which the present case was accordingly allocated.

7. Referral of the case to a Chamber sitting in extended composition

72 Acting on a proposal from the Sixth Chamber, the Court decided, on 11 June 2020, pursuant to Article 28 of the Rules of Procedure, to refer the case to a Chamber sitting in extended composition.

8. Measures of organisation of procedure and inquiry

73 On 8 October 2020, acting on a proposal from the Judge-Rapporteur, the Court (Sixth Chamber, Extended Composition), in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put questions to the applicant and the Commission to be answered in writing and asked the Commission to produce documents.

74 On 12 October 2020, the Commission made a request for an extension of the time limit for the reply to the questions and requests put by the Court on 8 October 2020. The Commission was granted the extension and the same time limit was set for the applicant.

75 On 19 and 20 November 2020, the Commission and the applicant replied to the measures of organisation of procedure.

76 By order of 12 October 2020, acting on a proposal from the Judge-Rapporteur, the Court (Sixth Chamber, Extended Composition), in the context of the measures of inquiry provided for in Article 91(b) of the Rules of Procedure, ordered the Commission to produce certain information and documents.

77 By document lodged at the Court Registry on 19 November 2020 (‘the document of 19 November 2020’), the Commission complied with that order.

78 Pursuant to Article 103(3) of the Rules of Procedure, the Court, by a measure of organisation of procedure of 10 December 2020, asked the applicant’s representatives to give an appropriate undertaking concerning the confidential treatment of the document of 19 November 2020 at that stage of the proceedings.

79 By document lodged at the Court Registry on 15 December 2020, the applicant’s representatives replied to the measure of organisation of procedure of 10 December 2020 by sending a signed confidentiality undertaking.

80 By decision of 8 January 2021, the Court (Sixth Chamber, Extended Composition) decided that the document of 19 November 2020 was relevant in order for it to rule on the dispute in accordance with Article 103(2) of the Rules of Procedure.

81 By document lodged at the Court Registry on 26 January 2021, the applicant’s representatives who had given the confidentiality undertaking provided their comments on the document of 19 November 2020.

82 By document lodged at the Court Registry on 21 January 2021, which was included in the file of the present case by decision of the President of the Sixth Chamber, Extended Composition, of the General Court of 3 February 2021, the applicant’s representatives who had given the confidentiality undertaking requested that that confidentiality undertaking be waived and that the document of 19 November 2020 be sent to the applicant. The Commission was invited to provide its comments in that regard.

83 By document lodged at the Court Registry on 22 February 2021, the Commission provided its comments on the document lodged on 21 January 2021 by the applicant’s representatives who had given the confidentiality undertaking.

84 In the light of the comments provided by the Commission and by the applicant’s representatives who had given the confidentiality undertaking, the Court (Sixth Chamber, Extended Composition), by order of 20 April 2021 and in the context of the measures of inquiry pursuant to Article 91(b) of the Rules of Procedure, ordered the Commission to produce a non-confidential version of the document of 19 November 2020.

85 By document lodged at the Court Registry on 26 April 2021, the Commission complied with that order.

86 The non-confidential version of the document of 19 November 2020 was served on the applicant, and it was stated that the applicant could provide its comments on that document at the hearing and, where necessary, in writing after the hearing.

87 At the hearing on 6 May 2021, during the in camera session concerning the document of 19 November 2020 produced pursuant to Article 103 of the Rules of Procedure and covered by a confidentiality undertaking signed by the applicant’s representatives, the Court, in the light of the exchanges which took place on that subject at the hearing, asked the Commission whether it could consider waiving confidentiality vis-à-vis the applicant in relation to certain information contained in that document which continued to be confidential as regards the applicant. As the Commission stated that it was not in a position to reply to such an information request at the hearing, a two-week time limit was set for a written reply.

88 By document lodged at the Court Registry on 7 May 2021, the Commission, in essence, stated that it could not reply to that information request as it stood and requested to be able to respond to that request by way of a measure of inquiry pursuant to Article 92(3) of the Rules of Procedure. The Commission also requested to be able to listen to the audio recording of the exchanges which had taken place on that subject at the hearing, pursuant to Article 115 of the Rules of Procedure.

89 The President of the General Court authorised the Commission to listen to part of the audio recording of the hearing.

90 After the applicant had provided comments on the Commission’s request for a measure of inquiry, the Court, pursuant, first, to the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union and, second, to Article 91(b) and Article 92(3) of the Rules of Procedure, by order of 4 June 2021, ordered the Commission to indicate, within a time limit set by the Court Registry, whether it waived confidentiality vis-à-vis the applicant in relation to certain information contained in the document of 19 November 2020.

91 By document lodged at the Court Registry on 11 June 2021, the Commission complied with that order, maintaining that there were no grounds justifying waiving confidentiality vis-à-vis the applicant of the information at issue contained in the document of 19 November 2020.

92 By document lodged at the Court Registry on 20 July 2021, the applicant’s representatives who had given the confidentiality undertaking, having requested and obtained an extension of the time limit granted to them, provided their comments on the Commission’s reply of 11 June 2021.

9. Oral part of the proceedings

93 On 18 November 2020, following a decision of the President of the Sixth Chamber, Extended Composition, of the General Court, the parties were invited to attend a hearing fixed for 2, 3 and 4 February 2021.

94 In accordance with Article 109 of the Rules of Procedure, in view of the applicant’s request that any hearing which might refer to some of the documents produced as the further evidence of 26 July 2019 be held in camera, the Court decided to hear the parties regarding holding part of the hearing in camera.

95 By letter lodged at the Court Registry on 10 December 2020, supplemented on 18 December 2020, the applicant requested that the hearing be postponed having regard, first, to the health situation and, second, to a request made in the United States for confidentiality of some of the further evidence of 26 July 2019 to be waived.

96 By letter lodged at the Court Registry on 15 December 2020, the Commission, first, stated that holding part of the hearing in camera could be justified as regards some of the further evidence of 26 July 2019 and, second, submitted comments on the organisation of the hearing.

97 By letter lodged at the Court Registry on 18 December 2020, the applicant, first, requested that the hearing be held in camera as regards some of the further evidence of 26 July 2019 and, second, stated that such a request could become nugatory depending on the outcome of the confidentiality waiver request made in the United States.

98 On 22 December 2020 the President of the Sixth Chamber, Extended Composition, of the General Court decided to postpone the hearing.

99 On 29 January 2021, following a decision of the President of the Sixth Chamber, Extended Composition, of the General Court, the parties were invited to attend a hearing fixed for 4, 5 and 6 May 2021.

100 On 22 March 2021, the Commission submitted proposals concerning the organisation of the hearing.

101 On 26 March 2021, the applicant submitted a second request for the hearing to be postponed.

102 On 29 March 2021, the applicant provided comments on the Commission’s proposals concerning the organisation of the hearing.

103 On 31 March 2021, the President of the Sixth Chamber, Extended Composition, of the General Court made a decision to refuse the second request for the hearing to be postponed.

104 On 9 April 2021, the Court (Sixth Chamber, Extended Composition) decided to invite the parties to an informal meeting concerning the organisation of the hearing.

105 On 14 April 2021, the applicant requested that its employees participate in the hearing by video-conference.

106 The informal meeting was held on 15 April 2021.

107 On 16 April 2021, first, the President of the Sixth Chamber, Extended Composition, of the General Court made a decision not to allow the applicant’s employees to participate in the hearing by video-conference and, second, the Court (Sixth Chamber, Extended Composition) decided to arrange for part of the hearing to be held in camera.

108 On 16 April 2021, the applicant submitted a third request for the hearing to be postponed.

109 On 19 April 2021, the President of the Sixth Chamber, Extended Composition, of the General Court made a decision to refuse the third request for the hearing to be postponed.

110 On 21 April 2021, the applicant submitted a request to use technical resources at the hearing.

111 On 22 April 2021, the President of the Sixth Chamber, Extended Composition, of the General Court made a decision to allow technical resources to be used at the hearing.

112 By letter of 28 April 2021, included in the file of the present case by decision of the President of the Sixth Chamber, Extended Composition, of the General Court of 29 April 2021, the Commission lodged at the Court Registry a letter concerning the scope of the in camera session and reflecting the common position of the parties.

113 By letter of 3 May 2021, the applicant confirmed the parties’ common position on the scope of the in camera session and provided the Court with a list of the further evidence of 26 July 2019 in respect of which confidentiality had been totally or partially waived.

114 The hearing was held on 4, 5 and 6 May 2021.

115 The oral part of the procedure was closed on 17 September 2021.

B. Forms of order sought

116 The applicant claims that the Court should: – annul the contested decision; – in the alternative, annul or reduce substantially the amount of the fine imposed; – order the Commission to pay the costs.

117 The Commission contends that the Court should: – dismiss the action; – order the applicant to pay the costs.

III. Law

118 In support of its action, the applicant raises seven pleas in law. – the first plea alleges manifest procedural errors; – the second plea alleges manifest errors of assessment, failure to state reasons and distortion of evidence relating to efficiencies; – the third plea alleges manifest errors of law and of assessment as regards anticompetitive effects; – the fourth plea alleges manifest errors of assessment as regards the definition of the relevant market and the existence of a dominant position; – the fifth plea alleges manifest errors of law and of assessment and failure to state reasons as regards the duration of the alleged infringement; – the sixth plea alleges manifest errors of assessment in applying the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) and breach of the principle of proportionality; – the seventh plea alleges manifest errors of assessment as regards the jurisdiction of the Commission and the effect on trade between Member States.

119 In the interests of the proper administration of justice, it is appropriate to examine the first and third pleas in the action.

120 As a preliminary point, it is appropriate to examine the admissibility, which the Commission disputes, of the further evidence of 26 July 2019.

A. Admissibility of the further evidence of 26 July 2019

121 As a preliminary point, it should be noted that the further evidence of 26 July 2019 consists, first, in a very large majority, of a set of documents sent by Apple to the applicant between February and June 2019 following proceedings brought by the applicant on 20 August 2018 against Apple before the District Court pursuant to Section 1782 of Title 28 of the United States Code, entitled ‘Assistance to foreign and international tribunals and to litigants before such tribunals’ (‘the 1782 proceedings’) and, second, in a small part, of a set of documents from proceedings brought by the Federal Trade Commission (Federal competition agency, United States) against the applicant before the District Court and which resulted, in the context of a public hearing which commenced on 4 January 2019, in the judgment of 21 May 2019 mentioned in paragraph 54 above (‘the FTC proceedings’) being adopted. Furthermore, that additional evidence also includes, to a limited extent, certain press articles.

122 As a further preliminary point, it should also be recalled that, before the hearing, the applicant sent the Court a list of the documents submitted in respect of the further evidence of 26 July 2019 stemming from the 1782 proceedings, in respect of which confidentiality had been totally or partially waived (see paragraph 113 above) and that, during the public part of the hearing, the applicant referred to certain of those documents and to the existence of the 1782 proceedings.

123 The applicant states that those documents were not available to it or its European lawyers at the time of lodging the application or the reply and that it lodged the submission providing the further evidence of 26 July 2019 as soon as possible. First, as regards the documents from the 1782 proceedings, the applicant states that, following an order of February 2019, Apple sent 2300 documents to it between 23 February and 24 June 2019 in nine separate deliveries and that its lawyers examined those documents and identified those documents to be provided to the Court. Second, as regards the documents from the FTC proceedings, the applicant explains that a protective order prohibited its US lawyers from transmitting the documents concerned to its European lawyers.

124 The Commission contends that the further evidence of 26 July 2019 is inadmissible. First, it submits that certain documents pre-date the application, such as certain press articles, emails between the applicant and Apple and presentations by the applicant. Second, the Commission states that the applicant has not explained why, first, it failed to apply for disclosure of the documents before the District Court before 20 August 2018, in particular before the contested decision was adopted or immediately afterwards and why, second, it failed to inform the Court of that application or of its status in the reply. Third, the Commission submits that the applicant has provided no explanation as to why it did not make an earlier request to Apple to grant permission to use the evidence from the FTC proceedings, in particular before the hearing which took place in January 2019. Fourth, the Commission states that Article 92(7) of the Rules of Procedure concerns evidence provided in response to measures of inquiry and does not entitle a main party to submit, of its own motion and without adequate justification, additional evidence. Fifth, the Commission maintains that the applicant merely refers to certain additional evidence without providing any explanation of the matters addressed or demonstrating how that evidence supports its arguments.

125 In the first place, it should be noted that the applicant, in support of providing the further evidence of 26 July 2019, first, relies on Article 85(3) of the Rules of Procedure and, second, states that that evidence is produced in the light of Article 92(7) of those rules.

126 The Commission contends that the conditions laid down by Article 85(3) of the Rules of Procedure are not satisfied and that Article 92(7) of those rules is, in essence, irrelevant.

127 First, it should be pointed out that Article 85(3) of the Rules of Procedure provides that ‘the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified’. In particular, that possibility is an exception to the general rule set out in paragraph 1 of that article that evidence produced or offered must be submitted in the first exchange of pleadings.

128 It follows from the wording of that provision that, in order to rely on that possibility, the delay in adducing evidence must be justified by exceptional circumstances (see, to that effect, judgment of 11 September 2019, HX v Council, C‑540/18 P, not published, EU:C:2019:707, paragraph 67).

129 Accordingly, the Court allows the lodging of evidence offered after the rejoinder only in exceptional circumstances, that is, if the person offering the evidence was unable, before the end of the written procedure, to obtain possession of the evidence in question (see judgment of12 September 2019, Achemos Grupė and Achema v Commission, T‑417/16 P, not published, EU:C:2019:597, paragraph 37 and the case-law cited). The exceptional nature of such a submission implies that producing such evidence earlier was impossible or could not reasonably be required (see, to that effect, judgment of 15 December 2016, TestBioTech and Others v Commission, T‑177/13, not published, EU:T:2016:736, paragraph 251).

130 Furthermore, in that regard, it must be pointed out that the exception provided for in Article 85(3) of the Rules of Procedure differs from that provided for in Article 85(2), which allows the main parties to produce evidence in the reply or rejoinder in support of their arguments provided that the delay is justified, the latter exception not requiring there to be exceptional circumstances.

131 Second, it must be observed that, as regards measures of inquiry, under Article 92(7) of the Rules of Procedure, ‘evidence may be submitted in rebuttal and previous evidence may be amplified’.

132 In the present case, the applicant does not rely, as such, on that latter provision, but relies on it in so far as the case-law considers that Article 85 of the Rules of Procedure must be interpreted in the light of Article 92(7) of those rules, which provides that evidence may be submitted in rebuttal and previous evidence may be amplified (judgments of 22 June 2017, Biogena Naturprodukte v EUIPO (ZUM wohl), T‑236/16, EU:T:2017:416, paragraph 17, and of 9 September 2020, Greece v Commission, T‑46/19, not published, EU:T:2020:396, paragraph 30).

133 In the present case, as is apparent from the submission accompanying the further evidence of 26 July 2019, that evidence was produced in support of the first, second, third and fourth pleas in the action. Although the applicant states, in general terms, that that evidence is produced in order to amplify the evidence adduced in support of the arguments put forward in the application and in the reply and in order to refute the Commission’s arguments set out in the contested decision, in the defence and in the rejoinder, it must be stated that that evidence is not specifically either evidence in rebuttal intended to refute evidence produced by the Commission, or evidence seeking to amplify previous evidence, but is rather new evidence intended to support certain of the pleas in the action.

134 It is therefore necessary to examine whether, in the present case, the production of the further evidence of 26 July 2019 was justified by exceptional circumstances, in accordance with Article 85(3) of the Rules of Procedure.

135 In that regard, in the second place, it is necessary to examine the Commission’s objections seeking to demonstrate that the requirements laid down in Article 85(3) of the Rules of Procedure have not been satisfied.

136 First, as regards the documents from the 1782 proceedings, as a preliminary point, it should be recalled that those documents form part of a set of documents sent by Apple to the applicant between 23 February and 24 June 2019 at the end of the 1782 proceedings. In other words, it is common ground that the applicant received those documents, in a number of deliveries, after the reply had been lodged on 4 January 2019. It must therefore be stated that the applicant did not have the documents in question when it lodged its main pleadings and could therefore not produce them in the context of those pleadings, but that it was able to obtain them only at the end of the 1782 proceedings.

137 On the one hand, however, the Commission objects that the applicant has provided no explanation why it had not brought the 1782 proceedings against Apple before the District Court earlier.

138 However, the Commission’s objection is of no relevance for the assessment of whether there are exceptional circumstances as provided for in Article 85(3) of the Rules of Procedure. The question which arises in that regard is whether or not the evidence concerned was available at the stage of the lodging of the application or of lodging of the reply (see, to that effect, judgment of 13 December 2018, Haeberlen v ENISA, T‑632/16, not published, EU:T:2018:957, paragraphs 184 and 185) and not whether, as a matter of speculation, the applicant could have taken steps which, hypothetically, would have enabled it to make use of that evidence earlier.

139 In any event, it must be stated that that objection is based on incorrect premisses.

140 The 1782 proceedings brought by the applicant against Apple before the District Court were intended to gather evidence making it possible to refute certain findings of the Commission in the contested decision in view of the present judicial proceedings. The applicant was therefore not in a position to bring the 1782 proceedings before the contested decision was adopted and, moreover, even if that were possible, was under no obligation to do so as a precautionary and speculative measure in view of possible litigation before that decision had even been adopted.

141 The applicant cannot therefore be criticised for not having brought the proceedings in question before the contested decision was adopted.

142 In addition, in so far as the Commission relies on the fact that the applicant could have brought those proceedings ‘in the days and weeks following the adoption of the [d]ecision on 24 January 2018’, it must be stated that such an argument is also speculative and, moreover, amounts to imposing an obligation on the applicant which is unreasonable, or even impossible to satisfy. On the contrary, it is justified for the applicant, following the adoption of the contested decision, to have first prepared and brought the present action on 6 April 2018 and then, in the light of the content of the contested decision and of that action, to have brought the 1782 proceedings in order to obtain further evidence in support of its action. The Commission’s approach also disregards the inevitable period of coordination between the applicant, its European representatives and its US representatives in order to initiate the 1782 proceedings in the United States for the purposes of the present proceedings. Moreover, since, at the end of the 1782 proceedings, the applicant received the documents from Apple over a period of 6 to 10 months after those proceedings commenced, even if, as the Commission argues, it would have been possible to bring such proceedings when it was preparing its application (between February and March 2018), the applicant would, in all likelihood, not have received all the documents in time to examine them and produce them in the application on 6 April 2018 or in the reply on 4 January 2019.

143 On the other hand, the Commission contends that the applicant did not inform the Court of the existence and status of the action which it had brought before the District Court, in particular in the reply. That objection by the Commission is, however, also irrelevant, since Article 85(3) of the Rules of Procedure in no way requires the Court to be given prior information.

144 Second, as regards the set of documents originating from the FTC proceedings, as a preliminary point, it must be stated that those documents form part of the case file of the FTC proceedings before the District Court and that, before the public hearing commenced before that District Court in January 2019, knowledge and use of those documents were restricted by a protective order of 24 October 2017.

145 Those matters are common ground between the parties, just as it is common ground that, on the date of lodging the reply on 4 January 2019, those documents were not freely available to the applicant, since, first, knowledge and use of them was restricted to a limited number of the applicant’s American lawyers and in-house lawyers, those persons having been unable to send them to the applicant’s European lawyers, or to use them for the purposes of the administrative proceedings which led to the adoption of the contested decision or for the purposes of the present legal proceedings, and second, the public hearing before the District Court which made those documents public was held from 4 to 29 January 2019.

146 The Commission, however, submits that, under certain provisions of the protective order of 24 October 2017, without waiting for the public hearing held in January 2019 to begin, the applicant could have asked Apple for authorisation to allow it to use those documents earlier in the context of the present proceedings.

147 That objection by the Commission also cannot be accepted, since it is based on pure conjecture which cannot serve as a basis for the review by the Court. As the Commission itself points out, even if the applicant’s American lawyers and in-house lawyers with access to those documents had been in a position to assess their usefulness for the present proceedings, any use for that purpose required Apple’s prior agreement. There is nothing to indicate that, in the circumstances of the present case, those two eventualities would have become reality.

148 In any event, it should be noted that, as has been pointed out in paragraph 138 above, the question which arises is whether or not the evidence concerned was available at the stage of the lodging of the application or of the reply. In view of the evidence referred to in paragraph 145 above, that was not the situation in the present case, since the applicant lodged its reply on 4 January 2019, that is to say, the very day on which the extended time limit for lodging that document expired, and since the public hearing in the FTC proceedings, under which the documents at issue became public, also began on 4 January 2019. Consequently, it must be held that the applicant could not produce the documents at issue at the point when the reply was lodged.

149 Moreover, it cannot be held that, in the circumstances of the present case, the applicant unduly delayed producing before the Court the documents from the FTC proceedings. Since, in January 2019, the 1782 proceedings remained pending and the applicant received the documents from those proceedings between the end of February and the end of June 2019, it was justified for it to examine as a whole and then to produce together in July 2019 the relevant documents from both sets of proceedings.

150 Third, as regards the documents mentioned by the Commission which, although originating from the 1782 proceedings or the FTC proceedings, were available to the applicant before the application in the present case was lodged, that is to say emails between it and Apple and presentations by the applicant, it must be stated that it is true that those documents were available to the applicant on a document-by-document basis. However, those documents form part of the set of documents sent by Apple to the applicant at the end of the 1782 proceedings or of the set of documents constituting the case file in the FTC proceedings in the context of the January 2019 public hearing, with the result that they cannot be considered in isolation from the other documents in those sets. Accordingly, the applicant and its lawyers could not necessarily assess their relevance to the present case independently of the other documents in those document sets. In other words, in view of its origin, the further evidence of 26 July 2019 cannot be artificially segmented but, in so far as it stems from the 1782 proceedings or from the FTC proceedings, its admissibility must be assessed as regards the documents as a whole.

151 Fourth, the same is true of the three press articles included in the further evidence of 26 July 2019 which had been published before the application was lodged, since their late production is justified by the production of other additional evidence which they seek to support in footnotes to the pleading producing that evidence.

152 Fifth, as regards the Commission’s general allegation that, in the submission which produced the further evidence of 26 July 2019, the applicant does no more than make simple references to that evidence without providing explanations, that circumstance is irrelevant in relation to the assessment required by Article 85(3) of the Rules of Procedure, but relates, where appropriate, to the intelligibility of that evidence in examining the substance of the pleas in the action.

153 In the light of all the foregoing, in the circumstances of the present case, it must be concluded that the production, as a whole, of the further evidence of 26 July 2019 after the end of the written part of the procedure is justified by exceptional circumstances and that that evidence must therefore be admitted under Article 85(3) of the Rules of Procedure.

B. The first plea: manifest procedural errors

154 The first plea in law comprises four parts. The first alleges infringement of the rights of the defence in that the applicant was deprived of the opportunity to comment on important aspects of the contested decision. The second alleges breach of the principle of sound administration in that the Commission failed to conduct a thorough, objective and diligent investigation. The third alleges infringement of the rights of the defence in that the Commission failed to disclose to the applicant evidence relevant to its defence. The fourth alleges breach of the obligation to state reasons and breach of the principle of sound administration in that the Commission’s assessment of the facts was inaccurate, biased and incomplete.

155 It is appropriate to examine the first and third parts, alleging infringement of the rights of the defence.

1. Preliminary observations

156 The rights of the defence are fundamental rights forming an integral part of the general principles of law whose observance the General Court and the Court of Justice ensure (see, to that effect, judgment of 25 October 2011, Solvay v Commission (C‑109/10 P, EU:C:2011:686, paragraph 52).

157 Observance of the rights of the defence is a general principle of EU law which applies where the authorities are minded to adopt a measure which will adversely affect an individual (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 28).

158 That general principle of EU law is enshrined in Article 41(2)(a) and (b) of the Charter of Fundamental Rights of the European Union (judgment of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraph 105).

159 In the context of competition law, observance of the rights of the defence means that any addressee of a decision finding that that addressee has committed an infringement of the competition rules must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged as well as on the documents used by the Commission to support its claim that there has been such an infringement (judgments of 25 October 2011, Solvay v Commission, C‑109/10 P, EU:C:2011:686, paragraph 53, and of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraph 106).

160 According to well-established case-law, the rights of the defence are infringed where it is possible that the outcome of the administrative procedure conducted by the Commission may have been different as a result of an error committed by it. An applicant undertaking establishes that there has been such infringement where it adequately demonstrates not that the Commission’s decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no procedural error (judgments of 2 October 2003, Thyssen Stahl v Commission, C‑194/99 P, EU:C:2003:527, paragraph 31, and of 13 December 2018, Deutsche Telekom v Commission, T‑827/14, EU:T:2018:930, paragraph 129).

161 Such an assessment must be made in the light of the factual and legal circumstances of each case (judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 107).

2. The third part of the first plea: infringement of the rights of the defence, in so far as it relates to the absence of notes and information concerning meetings and conference calls with third parties

162 The third part is based on two complaints. The first alleges that the Commission failed to provide the applicant with adequate access to the case file. The second alleges that the case file lacks notes and information concerning the content of the Commission’s meetings and conference calls with third parties.

163 It is appropriate to examine the second complaint.

164 The applicant argues that the Commission is required to take notes of its formal or informal meetings with third parties and that it must forward those notes to the parties under investigation. In the present case, the Commission provided the applicant with no notes of its meetings with third parties. After the contested decision had been adopted, following a request from the applicant, the Commission informed the applicant that meetings and conference calls with third parties had taken place and forwarded to it notes which were meaningless. More complete notes would have assisted the applicant’s defence in a number of respects. In addition, the Commission refused to reveal whether it had met with a particular third party during the investigation, whereas it is of relevance to the applicant’s defence to know whether such meetings took place and which topics had been discussed.

165 The applicant adds that Regulation No 1/2003 draws no distinction between interviews and other types of meetings or conference calls. In the view of the applicant, the Commission is not entitled to determine, at a meeting or a conference call, what is exculpatory and what is not; rather it is for the undertaking concerned to decide whether specific elements from the case file may be helpful for the purposes of its defence. In the present case, the notes forwarded by the Commission to the applicant are not appropriate, as they do not contain any meaningful information on the content of the discussions or on the nature of the information provided on the topics referred to, but rather identical and vague expressions. The applicant denies that it was able to determine the information exchanged at the meeting and in the conference calls in question on the basis of the third parties’ replies to the information requests, since the notes make no reference to those replies, and vice versa. The applicant states that it is not for the Commission to determine whether or not a third party has provided exculpatory information, since the Commission is under an obligation to take notes and provide them to it.

166 First, the Commission, after stating that it took appropriate notes of the meetings and conference calls with third parties, replies that it is under no general duty to take notes during meetings or conference calls with third parties, its obligations being more limited. The Commission states, on the one hand, that it is required to take ‘full notes’ of meetings or conference calls which constitute interviews within the meaning of Article 19(1) of Regulation No 1/2003, the purpose of which is to collect information relating to an investigation, although the applicant has not submitted in the present case that meetings or conference calls with third parties constituted ‘interviews’. On the other hand, the Commission is required to take ‘succinct notes’ of meetings or conference calls the purpose of which is to collect information relating to an investigation only where third parties provide inculpatory evidence which the Commission intends to use or exculpatory evidence on which the undertaking could rely. Second, the Commission submits that it properly took ‘succinct notes’ of the meetings and conference calls in question. It states that, in the present case, following the request by the applicant, it found that it had inadvertently failed to provide the applicant with the notes of a meeting and of three conference calls with third parties, but that it had then provided the applicant with those notes, stating the undertakings, timing and topics addressed. Similarly, the Commission states that the contested decision does not rely on any incriminatory evidence provided by those third parties during those meetings and conference calls. Third, the Commission maintains that the applicant has not demonstrated why it would be relevant to its defence to know whether it had met with a particular third party, in so far as the decision is based on evidence provided by Apple and it is difficult to imagine the applicant asserting that the third party in question was likely to provide exculpatory evidence.

167 The Commission adds that the applicant does not take account of the fact that the third party who had had a meeting with it did not provide exculpatory evidence and that third parties who had held conference calls with it stated that they had not discussed matters which were not contained in the information provided in their replies to the information requests. According to the Commission, it is plausible that certain information provided during those conference calls was already contained in the replies to the information requests, just as it is plausible that the information subsequently provided in the replies to the information requests reflects the content of the conference calls, which is logical. The Commission maintains that the applicant’s argument that the meeting and the conference calls in question are interviews within the meaning of Article 19 of Regulation No 1/2003 is out of time and inadmissible. Furthermore, the Commission states that the applicant does not explain why the information on meetings with a third party is relevant.

168 From the outset, in the present case, it is common ground that, during the administrative procedure which led to the adoption of the contested decision, the Commission did not forward to the applicant any information concerning either the existence or content of the meetings and conference calls which it had held with third parties.

169 However, the Commission provided the applicant with certain information concerning seven meetings or conference calls with third parties after the contested decision had been adopted. More specifically, information concerning four of them was provided, following a request by the applicant, before the present action was brought, whilst information on the other three was provided during the present proceedings, either in response to the applicant’s arguments based on the further evidence of 26 July 2019 or in response to the measures of inquiry ordered by the Court on 12 October 2020.

170 It is therefore necessary to examine whether, in those circumstances, the Commission infringed the applicant’s rights of defence.

(a) The meeting and conference calls with third parties in respect of which information was sent to the applicant before the present action was brought

(1) Summary of the background

171 It is apparent from the evidence submitted that, after receiving the contested decision, the applicant asked the Commission on 25 January 2018 to inform it of meetings or interviews which the Commission had held with third parties and of which it had not been informed. On 2 March 2018 the Commission informed the applicant by email that it had verified whether it had inadvertently failed to inform it of ‘any meeting or interview’ which had taken place ‘in the context of Case AT.40220’. In that regard, the Commission informed the applicant that it had inadvertently failed to inform it of the existence of a meeting and three conference calls with third parties. By the same email, the Commission sent the applicant documents containing the notes of that meeting and of those conference calls as well as a presentation made at that meeting.

172 More specifically, the Commission referred to a meeting with [confidential] ( 1 ) on [confidential], a conference call with [confidential] on [confidential] and two conference calls on [confidential], one with [confidential] and the other with [confidential].

173 In that regard, first, it must be observed that that meeting and those conference calls took place before the statement of objections and after the first information requests referred to in paragraphs 6 and 15 above had been sent. It is common ground, indeed, that that meeting and those conference calls took place, as the Commission stated, ‘in the context of Case AT.40220’. Second, as is apparent from the contested decision, those third parties are two competitors and two customers of the applicant, who also replied to some of those information requests.

174 [confidential] is a competitor of the applicant. As is apparent from the contested decision, that competitor [confidential]. In addition, according to the contested decision, [confidential].

175 [confidential] is a competitor of the applicant. As is apparent from the contested decision, it is, with [confidential], one of the [confidential] competitors that [confidential].

176 Moreover, [confidential] and [confidential] are [confidential].

177 [confidential] is an OEM obtaining supplies of LTE chipsets and [confidential].

178 [confidential] is an OEM obtaining supplies of LTE chipsets [confidential].

(2) Whether there was a procedural error

179 The applicant submits, in essence, that the Commission failed to fulfil its obligations to take notes of that meeting and those conference calls and to forward them to it. In particular, the applicant states that the notes which the Commission sent to it after the contested decision had been adopted are not appropriate and are meaningless.

180 The Commission submits, as a preliminary point, that the applicant did not maintain in the application that the meeting and the conference calls in question constituted ‘interviews’ within the meaning of Article 19 of Regulation No 1/2003 and that, therefore, the argument put forward in the reply alleging that that provision was infringed is inadmissible. In any event, the Commission submits, in essence, that the meeting and the conference calls in question did not constitute interviews within the meaning of Article 19 of Regulation No 1/2003 as they were not intended to gather information relating to the subject matter of an investigation. It was not therefore required to take full notes of that meeting and of those conference calls, but solely succinct notes in so far as the third parties provided inculpatory evidence which the Commission intended to use or provided exculpatory evidence on which the undertaking could have relied.

181 As regards the admissibility of the applicant’s argument, it is true that the applicant did not expressly refer to Article 19 of Regulation No 1/2003 in the application. However, it submitted expressly that the Commission had infringed the obligation to keep notes, or to take appropriate notes, of that meeting and of those conference calls and relied, for that purpose, on paragraph 91 of the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), which concerns specifically the obligations arising from Article 19 of Regulation No 1/2003. Therefore, the argument put forward by the applicant in the application sought clearly to argue that the Commission had infringed its obligations under that provision and the case-law relating to it. Therefore, the Commission’s plea of inadmissibility must be rejected.

182 As regards the substance of the applicant’s argument, it must be recalled that Article 19(1) of Regulation No 1/2003 constitutes a legal basis empowering the Commission to interview a natural or legal person in the context of an investigation (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 86).

183 It is apparent from the very wording of Article 19(1) of Regulation No 1/2003 that that provision is intended to apply to any interview conducted for the purpose of collecting information relating to the subject matter of an investigation. There is nothing in the wording of that provision or in the objective it pursues to suggest that the legislature intended to exclude certain of those interviews from the scope of that provision (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 84 and 87).

184 As is apparent from the preparatory documents for Regulation No 1/2003, that legal basis refers to the simple fact of hearing a natural or legal person in order to gather information (see the Proposal for a Council Regulation on the implementation of the rules on competition laid down in Articles 81 and 82 [EC] and amending Regulations (EEC) No 1017/68, (EEC) No 2988/74, (EEC) No 4056/86 and (EEC) No 3975/87 (COM(2000) 582 final) (OJ 2000 C 365 E, p. 284)).

185 Therefore, the fact that the interviews which the Commission held with third parties may have taken the form of meetings or conference calls cannot bring them outside the scope of Article 19 of Regulation No 1/2003, when they are conducted for the purposes of collecting information relating to the subject matter of an investigation.

186 In the present case, contrary to the Commission’s suggestion, a body of consistent evidence demonstrates that the purpose of the meeting and the conference calls in question was to collect information relating to the subject matter of the investigation which led to the adoption of the contested decision.

187 First, from a procedural perspective, the meeting and the conference calls in question were held after the Commission had commenced the investigation in August 2014 (recital 8 of the contested decision) and, in particular, after the first information requests referred to in paragraphs 6 and 15 above had been sent. Furthermore, the notes drafted by the Commission all refer to the administrative procedure which led to the adoption of the contested decision, namely ‘AT.40220’. In addition, the exchanges which the Commission had with the applicant when it forwarded those notes to it (paragraph 171 above) bear that same reference and refer expressly to ‘meetings or interviews which had taken place in the context of Case AT.40220’.

188 Second, from a substantive perspective, those notes all indicate that the meeting and the conference calls in question concerned the chipsets market, the applicant’s position on that market or certain of the applicant’s business practices on that market. More specifically, the note of the meeting with [confidential] of [confidential] states that it concerned the chipsets market and the applicant’s position on that market; the note of the conference call with [confidential] of [confidential] indicates that it concerned certain business practices of the applicant in the chipsets sector and that no concrete evidence was provided during the conference call; the note of the conference call with [confidential] of [confidential] indicates that it concerned the chipsets market and certain business practices of the applicant; and the note of the conference call with [confidential] of [confidential] indicates that it concerned the chipsets market.

189 Since the meeting with [confidential] and the conference calls with [confidential], [confidential] and [confidential] were conducted for the purposes of collecting information relating to the subject matter of the investigation, as regards the relevant market, the applicant’s position on that market or the applicant’s business practices on that market, they fell within the scope of Article 19 of Regulation No 1/2003.

190 When it conducts an interview, pursuant to Article 19 of Regulation No 1/2003, for the purposes of collecting information relating to the subject matter of an investigation, the Commission is required to record such an interview in a form of its choosing. For that purpose, it is not sufficient for the Commission to make a brief summary of the subjects addressed during the interview. The Commission must be in a position to provide an indication of the content of the discussions which took place during the interview, in particular the nature of the information provided during the interview on the subjects addressed (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 91 and 92).

191 In the present case, the notes sent by the Commission to the applicant after the contested decision had been adopted do no more than provide, in addition to the date and names of the participants, a very general indication – limited, in essence, to two to three lines – concerning the subjects addressed, namely the chipsets market, the applicant’s position on that market or the applicant’s business practices on that market. By contrast, those notes give no indication of the content of the discussions held during the interviews, in particular regarding the nature of the information provided on the subjects addressed, as required by the case-law referred to in paragraph 190 above.

192 Furthermore, the fact that those notes are incomplete is illustrated with clarity by two circumstances highlighted by the applicant.

193 First, the note concerning the conference call with [confidential] states that that third party provided its ‘views’ on ‘certain business practices of [the applicant] in the area of baseband chipsets’ and that no ‘concrete evidence’ was provided. As the applicant correctly points out, such a note raises questions as to the content of the discussions which took place between the Commission and the third party, the information which that third party provided and the absence of ‘evidence’ – moreover ‘concrete’ evidence – concerning that information. Such a note does not therefore make it possible to understand the information which [confidential] communicated to the Commission without providing concrete evidence and thus leaves the applicant unable to know what evidence was discussed during that conference call and, in particular, the possibility that that third party, namely [confidential], might have mentioned inculpatory or even exculpatory evidence, without providing any concrete evidence.

194 Second, the note relating to the meeting with [confidential] states that that meeting concerned the chipsets market and the applicant’s position on that market. Apart from the fact that such a description does not make it possible to understand the information which [confidential] forwarded to the Commission in that regard, it must be stated that that note does not mention that, at that meeting, that third party gave an oral presentation nor, a fortiori, the content of that presentation. A copy of that presentation was, however, forwarded by the Commission to the applicant after the contested decision was adopted, on 2 March 2018, in response to the applicant’s request of 25 January 2018. It is apparent from that 10-page presentation that it concerned specifically the investigation which led to the adoption of the contested decision (as is apparent from the cover page of that presentation, which mentioned the name and number of those proceedings), and that one page was devoted to the applicant’s dominant position on the chipsets market and five pages were devoted to [confidential]. The absence of any reference to such a presentation or to its content in the note drawn up by the Commission demonstrates its lack of precision.

195 Moreover, in addition to being incomplete, while the evidence submitted indicates that the documents containing those notes were drawn up by the Commission on the dates of the conference calls or shortly after the date of the meeting respectively, they also show that those notes were not complete on those dates and that they were supplemented or finalised subsequently, after the contested decision had been adopted. After being requested by the applicant on 25 January 2018 and therefore approximately three years after the date of those interviews, first, the Commission contacted [confidential] to obtain a copy of the presentation made by that third party at the meeting and, second, contacted [confidential], [confidential] and [confidential] to confirm the content of the notes which it had prepared of the conference calls, [confidential] having even proposed amendments to the note, which were accepted by the Commission. It is, for that matter, apparent from the evidence submitted that the clarification that ‘no concrete evidence was produced during the [conference] call’ did not appear in an initial version of the note and that it was added following that exchange between the Commission and [confidential].

196 It follows that, contrary to Article 19 of Regulation No 1/2003, the Commission did not properly record the interviews it held with [confidential], [confidential], [confidential] and [confidential].

197 Moreover, in so far as the applicant also argues that the Commission failed to send to it the notes of the interviews in question, first, it must be observed that, as the Commission explained before the Court, the note of the meeting with [confidential] had been recorded in the case file on [confidential] as a non-accessible document, that is to say as an internal Commission document, and without a copy of the presentation made by [confidential] at that meeting. Second, the notes of the conference calls with [confidential], [confidential] and [confidential] had not been registered in the case file.

198 Whatever the reasons for that, it is therefore common ground that the applicant received no information on the existence and scope of those interviews during the administrative procedure which led to the adoption of the contested decision. Nor are those interviews mentioned in the description of the administrative procedure contained in the contested decision.

199 In that regard, suffice it to note that, while it is indeed permissible to preclude from the administrative procedure evidence which has no relation to the allegations of fact and of law in the statement of objections and which therefore has no relevance to the investigation, it cannot be for the Commission alone to determine the evidence of use in the defence of the undertaking concerned (judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 126, and of 16 June 2011, FMC Foret v Commission, T‑191/06, EU:T:2011:277, paragraph 306). From that point of view, it must be observed that the record of interviews conducted for the purposes of collecting information on the subject matter of the investigation, which therefore falls within the scope of Article 19 of Regulation No 1/2003, such as the interviews in question, cannot be omitted from the case file.

200 While the Commission argues that the failure to communicate that information or those notes to the applicant had occurred ‘inadvertently’ and that it sent that information as soon as it had become aware of it after the applicant’s request of 25 January 2018, such circumstances, subsequent to the adoption of the contested decision, are not capable of remedying the procedural error committed by the Commission. First, the notes forwarded by the Commission to the applicant, in view of their incompleteness, do not remedy the failure to make a record in accordance with Article 19 of Regulation No 1/2003, since they do not indicate the information gathered during the interviews in question. Second, it must be pointed out that belated disclosure, after the adoption of a decision, of certain material which ought to have been included in the case file does not necessarily return the undertaking to the situation it would have been in if it had been able to rely on that material in presenting its written and oral observations to the Commission (see, to that effect, judgment of 25 October 2011, Solvay v Commission, C‑109/10 P, EU:C:2011:686, paragraph 56).

201 It follows from all the foregoing that, as regards the meeting with [confidential] and conference calls with [confidential], [confidential] and [confidential], the Commission failed to fulfil the obligations to make a record arising under Article 19 of Regulation No 1/2003 and, consequently, to include a record of those interviews in the case file.

(3) Infringement of the rights of the defence

202 As regards the inferences to be drawn from the finding made in paragraph 201 above, in accordance with the case-law referred to in paragraphs 160 and 161 above, it is necessary to establish whether, in the light of the specific factual and legal circumstances of the present case, the applicant has demonstrated adequately that it would have been better able to ensure its defence had there been no procedural error.

203 It is appropriate to start by stating that, in view of the identity of the third parties in question, the content of the notes produced by the Commission and the content of the contested decision, the applicant highlighted that those third parties might have provided information which could have helped its defence, in particular as regards relevant market definition, market power and dominant position, foreclosure effects and efficiencies. To that end, the applicant produced before the Court an annex to the application (Annex A.9.7) which was intended to clarify the issues which might have been discussed during those interviews and how that material could have assisted its defence. The Commission, while initially disputing the admissibility of that annex, contested its content in an annex to the defence (Annex B.5). The parties then continued their exchanges on that subject in an annex to the reply (Annex C.12) and an annex to the rejoinder (Annex D.9).

204 In the first place, it should be recalled that the contested decision criticises the applicant for having reduced, through its exclusivity payments, Apple’s incentives to switch to competitors on the LTE chipsets market (Sections 11.4.1 and 11.4.2 of the contested decision). In that regard, in the contested decision, the Commission refers expressly to [confidential] and also mentions [confidential].

205 Accordingly, the third parties heard by the Commission in the interviews in question were two competitors of the applicant who were allegedly foreclosed by the applicant’s conduct ([confidential] and [confidential]) and two OEMs who obtained supplies of LTE chipsets, that is to say, competitors of the applicant’s customer who received the payments concerned ([confidential] and [confidential]).

206 In the second place, on the one hand, it is common ground that the applicant – like the Court – has no precise indication regarding the information gathered by the Commission during the interviews in question, even though those interviews concerned the subject matter of the investigation which led to the adoption of the contested decision and that, as has just been stated, the third parties in question included the applicant’s competitors, who were allegedly foreclosed by the applicant’s conduct, including, in particular, [confidential], namely [confidential].

207 Indeed, none of the documents in the case file concerning those interviews makes it possible to reconstitute with certainty the precise information relating to the subject matter of the investigation provided by the third parties in question during those interviews or the extent to which their content could have constituted exculpatory, inculpatory or neutral evidence.

208 In that regard, as concerns the conference calls with [confidential], [confidential] and [confidential], it is a matter of speculation to argue, as the Commission does, that it is ‘plausible’ that the information provided by those third parties was comparable to that provided in their replies to certain information requests and that the information therefore did not include any potentially exculpatory material. First of all, the notes of the interviews in question contain no reference to any other document, including the replies given to information requests. Their content cannot therefore be reconstituted from other sources in the case file. Next, the fact that those third parties, approximately three years after those interviews had been held and after the contested decision had been adopted, confirmed to the Commission by email, following its request and in order to respond to the applicant’s request of 25 January 2018, that the content of those discussions ‘[was] reflected’ in their replies to certain information requests does not allow any definite conclusion to be drawn as to the content of those discussions, in particular as to the precise nature of the information provided on the subjects addressed.

209 As regards the meeting with [confidential], contrary to the Commission’s suggestions, the presentation made by that third party at that meeting in no way precludes issues other than those mentioned in that presentation from having been discussed, since that presentation is not mentioned in the note of the meeting and, only one page of that presentation deals with the subjects mentioned in that note. In any event, even if the presentation by [confidential] could be regarded as providing an exhaustive reflection of the content of that meeting and as making it possible to rule out the possibility that that third party might have provided information relevant to the applicant’s defence, that would not affect the findings made in respect of the interviews with [confidential], [confidential] and [confidential].

210 On the other hand, however, in view of the circumstances referred to in paragraphs 204 and 205 above, several elements submitted by the applicant aim to provide prima facie evidence to support its argument that the information which the Commission and [confidential], [confidential], [confidential] and [confidential] might have exchanged during the interviews in question would have made it better able to ensure its defence.

211 First of all, as is apparent from the notes and the presentation produced by the applicant, it is common ground that those interviews all concerned, in the context of the investigation which led to the adoption of the contested decision, the chipsets market, the applicant’s position on that market or the applicant’s business practices on that market. In particular, it is very clear from the notes of two of those interviews, namely from the interview with [confidential] and from the interview with [confidential], that the applicant’s business practices were discussed by the Commission and those third parties. Although the notes of the two other interviews do not refer to the applicant’s business practices, it is hardly credible that, during the interview with [confidential] on the same day as the interview with [confidential], the Commission did not seek to obtain information regarding the applicant’s business practices covered by its investigation also from one of the competitors who was allegedly foreclosed. In addition, as is apparent from the presentation forwarded by the Commission to the applicant, the meeting with [confidential] also concerned the applicant’s business practices on the chipsets market. Even if that third party had provided information concerning [confidential], it is equally not credible that the Commission did not seek to obtain information on the applicant’s practices covered by its investigation.

212 Therefore, in such circumstances, as the applicant argues, it must be held that the information obtained by the Commission from those third parties during the interviews in question, and particularly from the competitors who were allegedly foreclosed, might have been relevant for its defence.

213 Next, for the sake of completeness, it should be stated that, in the tables contained in Annex A.9.7, having regard to the content of the contested decision and the specific circumstances of the present case, the applicant highlighted the fact that the Commission could have discussed certain specific issues with the third parties in question.

214 In that regard, as a preliminary point, it must be observed that, contrary to what the Commission maintains, Annex A.9.7 to the application submitted by the applicant cannot be regarded as being inadmissible. It seeks to substantiate in a schematic form, via tables, the arguments put forward in the application in relation to each of the interviews in question by reference to the content of each note. Moreover, the breadth of the exchanges which took place in that regard between the parties, contained in tables produced in Annex B.5 to the defence, in Annex C.12 to the reply and in Annex D.9 to the rejoinder, comprising many pages, demonstrates the appropriateness of such tables being set out in the annexes and not reproduced in the body of the main pleadings.

215 In the present case, the clarifications provided by the applicant relate to certain issues which it regards as relevant for its defence.

216 First, the applicant argued that the conference call with [confidential] might have concerned, inter alia, the capacity of [confidential] to supply Apple with LTE chipsets for iPhones and iPads during the period concerned, the reasons for and relevance of the lack of competing standalone LTE chipsets from [confidential], the nature and extent of the investments necessary to meet Apple’s requirements and the related contractual protection and [confidential], as well as the possibility that [confidential] had no objections to the agreements concerned or had no complaint [confidential] which would have been exculpatory. According to the applicant, in so far as, according to the contested decision, [confidential] was [confidential], any information provided by [confidential] would have been of obvious relevance to the applicant’s defence.

217 Second, the applicant argued that the conference call with [confidential] might have related, inter alia, to the relative merits of its LTE chipsets and those of [confidential] and [confidential], Apple’s demands vis-à-vis its potential suppliers, the nature and extent of the specific investments necessary for Apple and related contractual protection and market dynamics and the reasons for [confidential]. According to the applicant, in so far as, according to the contested decision, [confidential] LTE chipsets had been regarded by Apple as potential competitive alternatives to the applicant’s chipsets for certain iPad models, any indication provided by [confidential] would have been of obvious relevance to the applicant’s defence.

218 Third, the applicant argued that the meeting with [confidential] and the conference call with [confidential] might have related in particular to Apple’s requirements vis-à-vis its suppliers in relation to those of other OEMs and to the relative merits of its chipsets and those of its competitors.

219 In order to disprove the applicant’s arguments, the Commission stated, in Annex B.5 to the defence, that [confidential]’s replies to the information requests of [confidential] and [confidential] confirm that a note of the conference call with [confidential] would have disclosed no exculpatory evidence regarding the issues mentioned by the applicant, on the ground that, in those replies, [confidential] provided no information relating to those matters. The Commission put forward an identical line of argument as regards the issues raised by the applicant in relation to [confidential], by relying on that third party’s replies to the information requests of [confidential] and [confidential], as regards issues mentioned by the applicant in relation to [confidential], by relying on the presentation made by that third party at the meeting in question, and as regards issues raised by the applicant in relation to [confidential], by relying on that third party’s replies to the information requests of [confidential] and [confidential] and of [confidential].

220 At the outset, in so far as the Commission refers to the replies of [confidential], [confidential] and [confidential] to the information requests and to the presentation by [confidential] for the purposes of maintaining that those third parties did not make reference to exculpatory evidence, it is sufficient to state that such arguments must be rejected for the reasons referred to in paragraphs 208 and 209 above.

221 However, contrary to the Commission’s suggestions, in the specific circumstances of the present case, the clarifications provided by the applicant in an annex to the application tend to demonstrate in concrete terms that the interviews which the Commission held with the third parties in question could have related to matters such as those referred to in paragraphs 216 to 218 above, which, depending on the circumstances, could have helped the applicant to defend itself better with regard, in particular, to the effects of and justification for its conduct on the LTE chipsets market.

222 Last, and for the sake of further completeness, as the Commission states, it should be observed that, in Sections 11.4.1 and 11.4.2 of the contested decision, in addition to the information provided by the applicant itself, the Commission referred solely to information and documents from Apple. By contrast, in those sections of the contested decision, the Commission did not refer to any evidence provided by [confidential], [confidential], [confidential] and [confidential], and in particular by the competitors who were allegedly foreclosed by the applicant. Information provided by some of those third parties ([confidential], [confidential] and [confidential]) is mentioned only in Section 11.4.4 of the contested decision (recitals 475, 476 and 478) in order to support the argument of Apple being an ‘attractive customer’.

223 However, such an observation, in the specific circumstances of the present case, far from precluding an adverse effect on the applicant’s rights of defence, tends to demonstrate that, as the applicant in essence submits, knowledge of the content of the interviews in question could have proved relevant for its defence. Knowledge of the fact that those third parties, and in particular the applicant’s competitors who were allegedly foreclosed by the applicant’s conduct ([confidential] and [confidential]), had not provided any inculpatory evidence capable of supporting the foreclosure effect alleged by the Commission when they were heard in the administrative procedure which led to the adoption of the contested decision could have enabled the applicant to present its conduct in a different light and to substantiate its defence differently.

224 It follows from all the foregoing that, having regard to the specific factual and legal circumstances of the present case, in so far as (i) the Commission did not properly make a record of the interviews in question, and (ii) the applicant or its representatives received no information on the very existence of those interviews until after the contested decision had been adopted and before the present action was brought, the Commission infringed the applicant’s rights of defence. The evidence submitted by the applicant tends to demonstrate that the interviews with [confidential] and [confidential], namely two competitors of the applicant who were allegedly foreclosed, and with [confidential] and [confidential], namely two OEMs who obtained supplies of LTE chipsets, could have provided information essential to the further course of the proceedings which could have been relevant to the applicant, by making it better able to ensure its defence.

225 In the light of that infringement of the applicant’s rights of defence, the third part of the first plea in the action must be upheld in so far as it concerns the meeting with [confidential] and the conference calls with [confidential], [confidential] and [confidential] in respect of which information was provided to the applicant before the present action was brought.

226 In the circumstances of the present case, it is appropriate to continue the examination of the present part of the plea as regards the meeting and conference call with a third party in respect of which information was provided to the applicant during the present proceedings in response to arguments based on the further evidence of 26 July 2019.

(b) The conference call and the meeting with a third party in respect of which information was sent to the applicant during the present proceedings in response to arguments based on the further evidence of 26 July 2019

(1) Summary of the background

227 It is apparent from the evidence submitted that, following the Commission’s reply of 2 March 2018 sending the applicant, by email of 5 March 2018, information on the existence of the meeting with [confidential] and the conference calls with [confidential], [confidential] and [confidential], the applicant asked the Commission to confirm that it had not met formally or informally with [confidential]. By email of 13 March 2018, the Commission reiterated that, following the applicant’s request of 25 January 2018, it had checked whether it had inadvertently failed to inform it of ‘any meeting or interview’ which had taken place ‘in the context of Case AT.40220’ and that it had provided the applicant with information in that regard in its email of 2 March 2018 for reasons of good administration. The Commission added that, since the contested decision had been adopted, it would no longer address requests of that type.

228 The responses which the Commission gave to the applicant on 2 and 13 March 2018 could suggest that the information provided in relation to the meetings or conference calls with third parties was exhaustive and that, therefore, the Commission had not held meetings or conference calls with [confidential], but solely with [confidential], [confidential], [confidential] and [confidential].

229 In the application, however, the applicant submitted that it had no express indication confirming or denying the existence and scope of any meetings or conference calls between the Commission and [confidential].

230 The Commission did not confirm or deny either in the defence or in the rejoinder whether such meetings or conference calls had been held.

231 It was only after the applicant had adduced the further evidence of 26 July 2019 that the Commission, in its comments of 30 October 2019 on that evidence, referred to there having been a conference call with [confidential] on [confidential] and a meeting with [confidential] on [confidential], and expressly stated that it had no notes or records of that conference call or that meeting.

232 As the Commission had, however, stated that it was prepared to provide further information regarding the context of the conference call with [confidential] of [confidential] in the context of measures of inquiry, the Court adopted such measures aimed at obtaining that information. The handling of the Commission’s response to those measures of inquiry gave rise to the procedural steps set out in paragraphs 78 to 92 above.

233 In that regard, first, it must be noted that the conference call and the meeting with [confidential] took place before the statement of objections and after the first information requests referred to in paragraph 15 above had been sent. Second, as is apparent from the contested decision, that third party [confidential], and replied to some of those information requests.

234 However, [confidential] has a particular position in the context of the contested decision. Indeed, a number of factors demonstrate that third party’s importance in the logic of the contested decision: [confidential]. Furthermore, from a proced