2006/895/EC: Commission Decision of 26 May 2004 relating to a proceeding under Article 81 of the EC Treaty against The Topps Company Inc, Topps Europe Limited, Topps International Limited, Topps UK Limited and Topps Italia SRL (Case No COMP/C-3/37.980 — Souris-Topps) (notified under document number C(2004) 1910)
Date: 2004-05-26
Institutions: European Commission
Subjects: fine, gaming, import restriction, infringement procedure (EU), restriction on competition, restrictive trade practice

13.12.2006

EN

Official Journal of the European Union

L 353/5

COMMISSION DECISION

of 26 May 2004

relating to a proceeding under Article 81 of the EC Treaty against The Topps Company Inc, Topps
Europe Limited, Topps International Limited, Topps UK Limited and Topps Italia SRL

(Case No COMP/C-3/37.980 — Souris-Topps)

(notified under document number C(2004) 1910)

(Only the English text is authentic)

(2006/895/EC)

On 26 May 2004, the Commission adopted a decision relating to a proceeding under Article 81 of the EC Treaty. In
accordance with the provisions of Article 30 of Regulation No 1/2003 (1), the Commission herewith publishes the names
of the parties and the main content of the decision, having regard to the legitimate interest of undertakings in the
protection of their business interests. A non-confidential version of the full text of the decision can be found in the
authentic language of the case and in the Commission's working languages at DG COMP's website at http://europa.eu.
int/comm/competition/index_en.html.

(1)

(2)

(3)

(4)

I:

SUMMARY OF THE INFRINGEMENT

Addressees, Nature and Duration of the Infringement

This Decision is addressed to The Topps Company Inc
(hereinafter ‘Topps USA’), Topps Europe Ltd (hereinafter
‘Topps Europe’), Topps UK Ltd (hereinafter ‘Topps UK’),
Topps International Ltd (hereinafter ‘Topps International’)
and Topps Italia SRL (hereinafter ‘Topps Italia’) (together
referred to as ‘Topps’).

(5)

(6)

The addressees infringed Article 81(1) of the Treaty by
participating with several of their intermediaries in the
United Kingdom, Italy, Finland, Germany, France and Spain
in a complex of agreements and concerted practices with
the object of restricting parallel
imports of Pokémon
stickers, trading cards and other collectibles from 4 February
2000 until 29 November 2000.

The case originates from a complaint by La Souris Bleue, a
French retailer for collectible products, alleging that Topps
and its distributors had successfully prevented parallel
imports of Pokémon stickers and albums from Spain into
France.

Products Concerned and Behaviour of Topps

The Decision concerns Pokémon collectibles. Collectibles
are items like stickers, trading cards or removable tattoos
popular with young children which follow certain themes
(e.g. members of sports teams or characters of cartoon
series). Pokémon is the name for a whole range of
characters originally developed for the Nintendo ‘Game
Boy’ videogame but also used, under a licence, by Topps to
illustrate collectible products.
there was a
significant demand for such Pokémon collectibles.

In 2000,

The definition of the relevant market can be left open since
this case concerns a restriction of competition by object.

The Decision identifies the existence of agreements and
concerted practices between Topps and seven of
its
European intermediaries with the overall objective of
restricting parallel
imports of Pokémon collectibles
between Member States. Topps and its intermediaries
pursued this objective with the following instruments and
mechanisms:

— Topps actively collected information so that it learned
of instances of parallel trade from its intermediaries;

— Topps monitored the final destination of Pokémon

products;

— when Topps knew from its intermediaries about
instances of parallel trade, it asked them for help in
order to trace back parallel imports to their source;

— Topps also involved its intermediaries by requesting
and receiving assurances that stock would not be re-
exported to other Member States;

— in some cases where Topps had the impression that its
intermediaries did not cooperate, it threatened to cut
the supply.

(7)

Topps acknowledged that it ‘engaged in activities that have had
the effect of impeding cross-border trade within the EU’ and that
‘a complete ban on exports and extensive territorial protection for
its distributors in the circumstances described above is difficult to
reconcile with Article 81’.

(1) OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC)

No 411/2004 (OJ L 68, 6.3.2004, p. 1).

(8)

The agreements and concerted practices between Topps and
its distributors or agents are restrictive by object. They aim

L 353/6

EN

Official Journal of the European Union

13.12.2006

at preventing intermediaries from exporting, both actively
and passively, Pokémon products outside their respective
contractual territories. As the object of the agreements and
concerted practices in this case is to restrict competition, it
is not necessary to consider
their actual effects on
competition. Notwithstanding this, the evidence on the
Commission file shows that parallel imports were, in fact,
prevented.

(9)

The block exemption regulations No 1983/83 (applicable
until 31 May 2000) and No 2790/1999 did not apply since
the restrictions aimed at guaranteeing absolute territorial
protection, thereby covering both active and passive sales.
Nor could the agreements benefit
from an individual
exemption under Article 81(3) of the Treaty since they did
not result in any improvement of the distribution of these
products and were detrimental to consumers.

(10) The Decision is addressed to all European Topps sub-
sidiaries which participated in the anti-competitive agree-
ments and concerted practices, and the ultimate US parent
company which are held jointly and severally liable for the
infringement. The latter is held liable because it was in a
position to decisively influence the conduct of its wholly
owned subsidiaries. The Commission legally presumes, on
the basis of the case law of the Court, that this power to
influence was actually exercised. Topps did not succeed in
legal presumption which was, on the
rebutting this
contrary, confirmed by the parallel
involvement of all
European subsidiaries and by the dual position of one
Topps employee as both Managing Director of the Irish
subsidiary and Vice President (International) of
the US
parent company. The decision is not addressed to Topps'
intermediaries because their responsibility for the infringe-
ment was less significant.

II:

FINE

Basic Amount

(11)

In its assessment of gravity, the Commission considers that
infringements with the objective of preventing parallel
imports between Member States are by their nature very
serious violations of Article 81(1) of
the Treaty. Such
infringements have the objective of artificially partitioning

the single market and, thereby, jeopardise a fundamental
principle of the Treaty. As regards the actual impact of the
infringement, the Commission takes into account that it
has no evidence showing that the restrictions of parallel
imports were applied systematically to all intermediaries or
products. Some of the agreements or concerted practices
appear not to have been implemented in full and may have
had a limited effect
the goods
concerned. The Commission has no evidence of substantial
effects of the restrictions on the market. Concerning the size
of the relevant market, the agreements or concerted practices
identified in this Decision concerned seven national
markets but the restrictive effects were mainly felt in only
three importing Member States.

in terms of value of

(12) Consequently, the infringement committed by Topps is
considered serious.
the Decision
In the light of
considers EUR 2 650 000 an appropriate amount to take as
a basis for calculating the fine. As the infringement is of
short duration (from 4 February 2000 until 29 November
2000), the basic amount of the fine is not increased.

this,

Aggravating and Attenuating Circumstances

(13) The Commission does not take into account aggravating

circumstances in this case.

(14) As regards attenuating circumstances,

the Commission
takes into account that Topps terminated the infringement
after the first Commission intervention. In view of this, the
basic amount of
the fine is reduced by 20 % (EUR
530 000). The Commission also considers that Topps has
cooperated effectively with the Commission during the
proceedings. Topps went beyond what was legally necessary
to comply with the obligations under Article 11 of
Regulation No 17, does not contest the facts upon which
the infringement is based and contributed significantly to
establishing the infringement. Therefore, the basic amount
of the fine is reduced by an additional 20 % (EUR 530 000).

The Final Amount Imposed

(15)

In view of the above, the final amount of the fine imposed
on Topps is EUR 1 590 000.