Final Report of the Hearing Officer (Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).) Broadcom – Interim Measures Procedure (Case AT.40608) (Text with EEA relevance) 2021/C 81/11
Date: 2019-10-08
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, control of restrictive practices, dominant position, electronic device, telecommunications equipment








C_2021081EN.01001301.xml










10.3.2021   


EN


Official Journal of the European Union


C 81/13






Final Report of the Hearing Officer (1)

Broadcom – Interim Measures Procedure
(Case AT.40608)
(Text with EEA relevance)
(2021/C 81/11)

Introduction









1.


The draft decision imposes interim measures pursuant to Article 8 of Regulation (EC) No 1/2003 (2) on Broadcom Inc. concerning behaviour that according to the draft decision is prima facie breaching Article 102 TFEU and Article 54 EEA.





Overview of the procedure









2.


Following the receipt of market information in the course of 2018 concerning potential anticompetitive behaviour by Broadcom Inc. and its subsidiaries, the Commission sent, between 24 October 2018 and 17 May 2019, requests for information pursuant to Articles 18(2) and 18(3) of Regulation (EC) No 1/2003 to Broadcom, its direct and indirect customers and its competitors.












3.



Initiation of proceedings. On 26 June 2019, the Commission decided to initiate proceedings within the meaning of Article 2(1) of Regulation (EC) No 773/2004 (3) against Broadcom Inc. in Case AT.40608 Broadcom. According to this decision:






—


the case concerns ‘potential anticompetitive behaviour by Broadcom Inc. and its subsidiaries (together “Broadcom”) relating to (i) Systems-on-a-chip, Front-end chips and WiFi chipsets for modems/residential gateways and TV set-top boxes, as well as to (ii) components for so-called central office/head end equipment for the provision of xDSL, fibre and cable connections in the European Economic Area. The Commission has information indicating that Broadcom may be implementing a range of exclusionary practices in relation to these products. Such practices cover, in particular, setting exclusive purchasing obligations, granting of rebates or other advantages conditioned on exclusivity, quasi-exclusivity or minimum purchase requirements, product bundling, abusive IP-related strategies or the deliberate degrading of interoperability between Broadcom products and products from other manufacturers’;










—


if the existence of such behaviour were to be confirmed, it might constitute an infringement of Article 102 TFEU and Article 54 EEA.
















4.



Statement of objections. Also on 26 June 2019, the Commission adopted a statement of objections addressed to Broadcom Inc. setting out the Commission’s preliminary view on the need to adopt interim measures pursuant to Article 8(1) of Regulation (EC) No 1/2003. The envisaged interim measures would in particular consist in ordering Broadcom to cease to apply exclusivity-inducing provisions in agreements with seven of its direct customers ([…], […], […], […], […], […] and […]) concerning their purchases from Broadcom of systems-on-chips for set-top boxes or systems-on-chips for cable, fibre or xDSL residential gateways, front-end chips or WiFi chipsets until the end of the Commission’s investigation in Case AT.40608 Broadcom.












5.



Access to the file. On the same day, Broadcom received an electronic storage device containing the accessible part of the Commission’s investigation file as it then stood.












6.



Time limit for the written response. The Directorate General for Competition (hereafter ‘DG Competition’) initially set a time limit of 8 July 2019 for Broadcom’s written response to the statement of objections.












7.


On 30 June 2019, Broadcom requested from DG Competition an extension of three weeks, until 29 July 2019. On 1 July 2019, DG Competition extended the time limit until 15 July 2019.












8.


On 5 July 2019, Broadcom sent to me a request (dated 4 July 2019) pursuant to Article 9(1) of Decision 2011/695/EU, to review DG Competition’s refusal to extend the time limit until 29 July 2019. By letter of 8 July 2019, I extended the time limit until 23 July 2019.












9.



Date of the oral hearing. In the same letter of 8 July 2019, I informed Broadcom that, if Broadcom requested in its written response to the statement of objections the opportunity to develop its arguments at an oral hearing, this oral hearing would take place on 29 July 2019.












10.


On 12 July 2019, Broadcom sent to me a request pursuant to Article 12(1), second sentence, of Decision 2011/695/EU to postpone the oral hearing until at the earliest the week of 19 August 2019. On the same day, I accepted Broadcom’s request and postponed the oral hearing until 20 August 2019.












11.



Written response. Broadcom submitted its written response to the statement of objections on 23 July 2019.












12.



Admission of interested third persons. A number of third persons applied to me and were admitted by me as interested third persons pursuant to Article 27(3) of Regulation (EC) No 1/2003, Article 13 of Regulation (EC) No 773/2004 and Article 5 of Decision 2011/695/EU:






—


an indirect customer of Broadcom (Liberty Global) applied on 9 July 2019 and was admitted the same day;










—


a competitor of Broadcom (MaxLinear) also applied on 9 July 2019 and was admitted on the same day;










—


a second competitor (MediaTek) applied on 10 July 2019 and was admitted on 11 July 2019;










—


a third competitor (Intel) applied on 12 July 2019 and was admitted on 15 July 2019;










—


a fourth competitor (Quantenna) also applied on 12 July 2019 and was admitted on 15 July 2019;










—


a direct customer of Broadcom ([…]) applied on 24 July 2019 and was admitted on 26 July 2019;










—


a second direct customer ([…]) applied on 29 July 2019 and was admitted on 30 July 2019;










—


an association grouping indirect customers (Cable Europe) applied on 30 July 2019 and was admitted on 31 July 2019;










—


a second indirect customer (Tele 2) applied on 31 July 2019 and was admitted on 1 August 2019;










—


a third direct customer ([…]) applied on 7 August 2019 and was admitted on 12 August 2019;










—


a fourth direct customer ([…]) applied on 19 August 2019 and was admitted on the same day.
















13.



Written comments by interested third persons. In conformity with Article 13(1) of Regulation (EC) No 773/2004, DG Competition informed each of the interested third persons about the nature and subject matter of the procedure (by providing them with a non-confidential version of the statement of objections) and granted each of them the opportunity to make known its views in writing within a set time limit. Seven of the eleven interested third persons (MaxLinear, MediaTek, Intel, Quantenna, […], […] and Cable Europe) made use of this opportunity and submitted written comments between 26 July and 9 August 2019.












14.



Letter of facts. Considering that the written comments submitted by the four competitors that had been admitted as interested third persons (MaxLinear, MediaTek, Intel and Quantenna) contained evidence that might be relevant to corroborate and support the Commission’s preliminary conclusions reached in the statement of objections, the Commission sent on 1 August 2019 a letter of facts to Broadcom setting out this evidence.












15.


Within the same letter of facts the Commission also transmitted to Broadcom two letters that direct customers of Broadcom had sent to the Commission and that could be of relevance to Broadcom’s defence:






—


a letter sent by […] on 19 July 2019; and










—


a letter sent by […] on 24 July 2019.
















16.


In the letter of facts, DG Competition initially set a time limit of 7 August 2019 for Broadcom’s written comments. On 7 August 2019, Broadcom requested and obtained from DG Competition an extension of this time limit until 22 August 2019.












17.


Broadcom submitted written comments on the letter of facts on 22 August 2019.












18.



Preparation of the oral hearing. On 26 July 2019, I sent Broadcom the formal invitation to the oral hearing and requested Broadcom to provide me by 2 August 2019 with information concerning, among other things, the envisaged duration of its presentation at the oral hearing and whether, and if so the reasons why, it requested a closed session for any part of its presentation.












19.


On 5 August 2019, Broadcom sent me its response, requesting a closed session for a large part of its presentation, but not providing any indication as to the envisaged duration of its presentation.












20.


Later on the same day, I sent Broadcom the draft agenda for the oral hearing, divided in a plenary morning session, with a first presentation by Broadcom and presentations by interested third persons, and a closed session in the afternoon, and allocated durations for each of the parts. On 7 August 2019, Broadcom informed me that it had no comments on the draft agenda.












21.


On 6 August 2019, I sent the formal invitations to the oral hearing to the third persons that had by that point in time requested to be admitted as interested third persons (see list in paragraph 12 above) and that had requested to take part in the oral hearing. The two indirect customers that had individually been admitted as interested third persons (Liberty Global and Tele2) did not request to take part in the oral hearing, whereas the association (Cable Europe) did.












22.


The third persons that applied to be admitted as interested third persons after the draft agenda had been determined on 5 August 2019 (see list in paragraph 12 above) were not invited to the oral hearing.












23.



Oral hearing. The oral hearing took place as planned on 20 August 2019.












24.


As Broadcom could not fully answer two of the questions asked by DG Competition during the closed session, I allowed Broadcom, pursuant to Article 12(3), second sentence, of Decision 2011/695/EU, to provide a written reply by 26 August 2019. Broadcom provided this written reply on 26 August 2019, and I forwarded this reply to all the participants in the closed session.












25.


In accordance with Article 14(8) of Regulation (EC) No 773/2004, the recording of the oral hearing was made available to Broadcom at noon on 22 August 2019.












26.


On 23 August 2019, Broadcom submitted a request pursuant to Article 12(4) of Decision 2011/695/EU to be afforded the opportunity to submit further written comments after the oral hearing. On 26 August 2019, I rejected this request, as Broadcom had failed to demonstrate the need for such further written comments to ensure its right to be heard.












27.



Further access to the file. On 17 September 2019, DG Competition provided Broadcom access to the additional documents registered on the Commission’s file since 26 June 2019 and granted Broadcom an opportunity to submit comments relating to these documents until 20 September 2019. Broadcom did not make use of that opportunity.












28.



Consultation of the Advisory Committee. The Advisory Committee on Restrictive Practices and Dominant Positions was consulted with a time limit of seven days, in conformity with Article 14(3) of Regulation (EC) No 1/2003.





Lack of advance notice of the possibility of interim measures









29.


In paragraphs 32 and 319 to 322 of its written response to the statement of objections, Broadcom complains that it received essentially no advance notice of the possibility of interim measures and the issuance of the statement of objections, and that the Commission thus infringed the principles of procedural fairness and equality of arms. The evidence in the file to which Broadcom received access following the issuance of the statement of objections shows that MediaTek requested that the Commission impose interim measures in November 2018. In prior cases where the Commission imposed interim measures, the Commission informed the parties in advance, and in some cases even provided the addressee with an opportunity to comment on the request filed by a third party. For instance, in the most recent prior case, COMP/38.044 NDC Health/IMS Health, NDC Health filed with the Commission a complaint requesting interim measures on 19 December 2000. This complaint was sent the next day to IMS Health, who was therefore aware of the possibility of interim measures more than two months before the issuance of the statement of objections on 9 March 2001.












30.


It appears indeed that Broadcom received essentially no specific advance warning of the possibility of interim measures and the issuance of the statement of objections (4).












31.


Broadcom was however well aware of the broader investigation in Case AT.40608 Broadcom. Indeed, it had received a request for information pursuant to Article 18(3) of Regulation (EC) No 1/2003 on 17 December 2018, and a third party to whom the Commission had addressed an earlier request for information ([…]), had forwarded that request for information to Broadcom on 22 November 2018. On 21 March 2019, a meeting between Broadcom and DG Competition took place, in which Broadcom gave a presentation concerning the competitive conditions in set-top boxes and residential gateways as well as the content of their agreements with three of the customers covered by the statement of objections ([…], […] and […]). In a Form 8-K filing to the Unites States Securities and Exchange Commission dated 26 June 2019 (5), Broadcom states that the initiation of proceedings in Case AT.40608 Broadcom on 26 June 2019 followed ‘months of discussion with Broadcom’.












32.


In any event, it does not appear that there is a legal obligation for the Commission to provide advance warning of the issuance of a statement of objections seeking the imposition of interim measures pursuant to Article 8 of Regulation (EC) No 1/2003.












33.


According to the case law, undertakings or associations of undertakings that are subject to an investigative measure under Chapter V of Regulation (EC) No 1/2003 (inspection or request for information) have the right to be informed of their procedural status, namely whether they are subject to an investigation and, if so, the subject matter and purpose of that investigation (6). Broadcom received such information in the first two recitals of the request for information of 17 December 2018.












34.


Also according to the case law, it is however only upon receipt of the statement of objections that the parties concerned are informed of all the objections made and the evidence used against them and are able to rely in full on their rights of defence (7).












35.


Finally (and although this does not appear determinative for answering the question whether advance warning is legally required), as to the comparison with prior practice of the Commission, in particular in the most recent case, COMP/38.044 NDC Health/IMS Health (see paragraph 29 above), it should be kept in mind that the interim measures procedure in the present case is not based on a complaint, and indeed could not legally have been based on a complaint. Whereas the Court of Justice’s interpretation of Article 3 of Regulation 17 in Camera Care as covering also interim measures simultaneously extended the legal status of complainant under Regulation 17 to interim measures (8), it is clear from the text of Article 8 of Regulation (EC) No 1/2003 (compared to the text of its Article 7), as well as from the legislative history of Regulation (EC) No 1/2003 (9), that interim measures can only be adopted at the Commission’s own initiative. There exists no legal status of complainant in relation to Article 8 of Regulation (EC) No 1/2003 (10).





Time limit for the written response to the statement of objections









36.


In paragraphs 33 and 313 and 325 of its written response to the statement of objections, Broadcom complains that it was given an unreasonably short period to respond in writing to the statement of objections. In this respect it refers to the criteria set out in paragraph 100 of the Commission’s Notice on Best Practices (11) and to the Opinion of Advocate General Warner in Commercial Solvents (12).












37.


Article 10(2) of Regulation (EC) No 773/2004 provides that, when notifying the statement of objections to the parties concerned, the Commission must set a time limit within which these parties may inform it in writing of their views. According to Article 17(1) of the same regulation, in setting this time limit, the Commission must have regard both to the time required for preparation of the written response and to the urgency of the case. Article 17(2) stipulates that the time limit must be






—


at least four weeks in case of a statement of objections with a view to finding an infringement pursuant to Articles 7 of Regulation (EC) No 1/2003 and/or imposing a fine pursuant to Article 23 of Regulation (EC) No 1/2003;










—


at least one week in case of a statement of objections with a view of adopting interim measures pursuant to Article 8 of Regulation (EC) No 1/2003.
















38.


This shorter minimum time limit for interim measures procedures (one week instead of four weeks) reflects the specific nature of interim measures procedures, as compared to normal antitrust procedures under Articles 7 and/or 23 of Regulation (EC) No 1/2003 leading to the finding of an infringement and/or the imposition of fines. The main specificity of interim measures procedures is the inherent need for speed.












39.


According to the case law, in merger control proceedings under the EU Merger Regulation (EC) No 139/2004, the general scheme of which is characterised by the need for speed, and which requires the Commission to comply with strict time limits for the adoption of the final decision, ‘the Commission is required to reconcile this need for speed with the observance of the rights of the defence’ (13), and the exercise of the rights of the defence may thus be reasonably adapted to the need for speed (14).












40.


Similarly, a need for speed is inherent in interim measures proceedings, and the exercise of the rights of the defence may thus similarly be reasonably adjusted to the urgency of interim measures proceedings.












41.


Paragraph 100 of the Commission’s Notice on Best Practices provides that a longer period than the minimum time limit will be granted by DG Competition taking into account, inter alia, the size and complexity of the file, the extent to which the addressee of the statement of objections has had prior access to the information, and any other objective obstacles which may be faced by the addressee of the statement of objections.












42.


It is however clear from that paragraph 100 of the Notice on Best Practices, which states that the minimum period is four weeks, that this paragraph does not apply to interim measures procedures (15), for which, as mentioned above (16), the minimum time limit is only one week. Moreover, as indicated in its paragraph 7, the Notice on Best Practices does not create any new rights or obligations, nor alter the rights or obligations which arise from the Treaty, Regulation (EC) No 1/2003, Regulation (EC) No 773/2004 and the case law of the EU Courts (17).












43.


As mentioned above (18), in the present case Broadcom was in the end granted a time limit of close to four weeks for its written response to the statement of objections, much longer than the minimum period of one week.












44.


In setting this time limit, I took into account all relevant circumstances of the case, including, as required by Article 9(1) of Decision 2011/695/EU, the size and complexity of the file, the extent to which Broadcom had had prior access to the information, and any other objective obstacles which Broadcom was faced with.












45.


The situation of Broadcom in the present case is not comparable with that criticised by Advocate General Warner in Commercial Solvents. The latter case did not concern an interim measures procedure but a normal antitrust procedure, and Commercial Solvents was only granted two weeks for its written response to the statement of objections (19). Moreover, notwithstanding the criticism he expressed, Advocate General Warner in the end considered that this short time limit was not a ground for annulment of the Commission’s final decision in that case (20).












46.


Finally, as mentioned above (21), I postponed the date of the oral hearing as requested by Broadcom, and I did not limit Broadcom’s speaking time at the oral hearing. Having read Broadcom’s written response to the statement of objections and listened to Broadcom’s presentations at the oral hearing, which were both fairly extensive and detailed, I have no doubt that Broadcom has been given adequate time to respond to the statement of objections.





Access to the file









47.


In paragraph 33 of its written response to the statement of objections, Broadcom complains of ‘inadequate access to the file, given the high percentage of materials that were withheld or redacted on confidentiality grounds’.












48.


As mentioned above (22), Broadcom received on 26 June 2019 an electronic storage device containing the accessible part of the Commission’s investigation file as it then stood (23).












49.


In its request of 30 June 2019 to DG Competition for an extension of the time limit for its written response to the statement of objections (24), Broadcom announced that it was ‘preparing a request for further access to documents which it will file as soon as the review of the accessible file is complete’.












50.


In its letter of 1 July 2019 (25), DG Competition responded that ‘we stand ready to review any duly substantiated requests for further access to the file that you may wish to submit within a timeframe that is compatible with the urgency of the proceedings at stake’.












51.


In its request sent to me on 5 July 2019 for the extension of the time limit for its written response to the statement of objections (26), Broadcom listed four ‘examples’ of alleged problems concerning specific documents in the file, and announced again that it was ‘preparing a request for further access to file’ which it would send to the Commission ‘as soon as possible’.












52.


DG Competition dealt swiftly with the complaints concerning those four specific documents. For a first document, which Broadcom indicated was partially unreadable, DG Competition provided Broadcom on the same day, 5 July 2019, with a fully readable copy. By email of 9 July 2019, after having contacted the document providers, DG Competition provided Broadcom with more explanations as well as less redacted versions of the second and third documents. For the fourth document, DG Competition explained in its email of 9 July 2019 that it had accepted at a previous stage of the proceedings the substantiated request of the document provider for anonymization of the excerpts at stake, insofar as a more extensive disclosure could expose the document provider to a concrete risk of retaliatory measures by Broadcom, that upon further review this assessment was confirmed, and that in any event the explicit identification of the respondent was unlikely to be relevant.












53.


DG Competition further indicated in its email of 9 July 2019 that, in case of disagreement, Broadcom could raise the matter with the Hearing Officer. Broadcom did not subsequently raise the matter with me.












54.


Broadcom has not submitted any later requests for further access to the file, neither in the remaining time until the submission of its written response to the statement of objections on 23 July 2019, nor in the subsequent period of its preparation for the oral hearing of 20 August 2019.












55.


I have not detected in Broadcom’s written response to the statement of objections, or during the oral hearing, any specific indication of any problem concerning access to the file that could have impeded the effective exercise of Broadcom’s right to be heard.





Non-invitation of an interested third person to the oral hearing









56.


At the oral hearing, Broadcom complained that […], one of its direct customers and an interested third person (see paragraphs 4 and 12 above), had not been invited to the oral hearing. Broadcom had also raised this matter with me in an email of 12 August 2019, to which I replied on 13 August 2019.












57.


As mentioned above (27), I invited to the oral hearing all the third persons that had applied to be admitted as interested third persons before the draft agenda of the oral hearing was determined on 5 August 2019, but not those that applied to be admitted as interested third persons after that date. The latter category includes […], which requested on 7 August 2019 to be admitted as interested third person and to be invited to the oral hearing.












58.


Article 13(1) of Regulation (EC) No 773/2004 provides that the Commission must inform interested third persons in writing of the nature and subject matter of the procedure and allow them to make known their views in writing within a set time limit. Article 13(2) adds that the Commission ‘may, where appropriate, invite [those interested third persons] to develop their arguments at the oral hearing of the parties to whom a statement of objections has been addressed, if [those interested third persons] so request in their written comments’.












59.


It is clear from these provisions that, whereas interested third persons have a right to be heard in writing, they have no right to be heard also orally at the oral hearing. Whether or not interested third persons are also heard orally at the oral hearing depends on a discretionary decision whether such invitation is ‘appropriate’. Article 6(2) of Decision 2011/695/EU has entrusted the Hearing Officer with this decision, subject to consultation of the Director responsible for the case in DG Competition.












60.


A number of factors are (or, depending on the specific case, can be) relevant for assessing whether it is appropriate to hear an interested third person also orally at the oral hearing, including the contribution the interested third person can make to the clarification of the facts (28). The point in time at which the third person requests to be admitted as interested third person and the point in time at which it expresses its interest in being heard orally at the oral hearing is a relevant factor, for two reasons. The first reason is that late requests interfere with the efficient and timely preparation of the oral hearing, in particular the determination of the agenda of the oral hearing. Secondly, in cases with a large number of interested third persons, the effectiveness of the oral hearing may require limiting the participation of interested third persons to a smaller, representative set of interested third persons. The point in time at which otherwise comparable third persons express their interest in being heard orally can provide a non-discriminatory criterion for selecting the smaller set of interested third persons invited to the oral hearing.












61.


In the present case, the Commission published on 26 June 2019 its Press release IP/19/3410, thus allowing third persons to start applying to be admitted as interested third persons and express their interest in being invited to the oral hearing (if an oral hearing would be requested by Broadcom). It is in the nature of interim measures procedures that they move fast, and it can thus be expected that third persons that wish to be admitted as interested third persons and to be invited to the oral hearing manifest themselves quickly. Indeed, as indicated above (29), the majority of interested third person requests were lodged within the first month following the publication of the press release.












62.


As mentioned above (30), […] only requested to be admitted as interested third person on 7 August 2019, two days after the draft agenda of the oral hearing had been determined. Following the determination of the draft agenda, the two other direct customers of Broadcom who had earlier requested to be heard orally ([…] and […]) had already been formally invited to the oral hearing on 6 August 2019 (31).












63.


As mentioned in paragraph 15 above, […] had already on 19 July 2019 sent a letter to DG Competition with information it wanted to provide. At that time […] did however not request to be admitted as interested third person or to be heard orally. The content of the letter did not suggest any need for further oral explanations either.












64.


Indeed it appears from its response of 25 July 2019 to a request for information sent by DG Competition on 22 July 2019 that […], following contacts with Broadcom initiated by Broadcom on 5 July 2019, had decided on 12 July 2019 to send a letter to the Commission but not to participate in the oral hearing, and that it had communicated both decisions to Broadcom on 13 July 2019.












65.


As to Broadcom’s standing to complain about the non-invitation of […] to the oral hearing, Article 10(3), last sentence, of Regulation (EC) No 773/2004 provides that parties may in their written response to the statement of objections propose that the Commission hear persons who may corroborate the facts set out in their submission. Broadcom did not make any such proposals in its written response of 23 July 2019.












66.


Finally, in its presentations during the oral hearing, Broadcom made extensive use of […]’s letter of 19 July 2019 (32). I cannot detect any way in which […]’s absence at the oral hearing could have harmed the effective exercise of Broadcom’s right to be heard.





Denial of the normal procedure under Article 7 of Regulation (EC) No 1/2003









67.


At the oral hearing, Broadcom complained that it was being denied the normal exercise of its rights of the defence because the Commission has, unnecessarily and without the legal requirement of urgency being fulfilled, chosen to send a statement of objections with a view to adopting interim measures pursuant to Article 8 of Regulation (EC) No 1/2003 instead of a normal statement of objections with a view to finding an infringement pursuant to Article 7 of Regulation (EC) No 1/2003.












68.


In my view this complaint is in reality not about Broadcom’s procedural rights but rather about whether or not the substantive requirement of urgency within the meaning of Article 8 of Regulation (EC) No 1/2003 is fulfilled in the present case.












69.


Indeed, there are logically only two possibilities:






i.


either, as Broadcom considers, the Commission has not established the existence of urgency within the meaning of Article 8 of Regulation (EC) No 1/2003; if that turns out to be the case, then any final decision of the Commission imposing interim measures could not be upheld for that reason;










ii.


or, contrary to Broadcom’s position, such urgency is established; in that case, Broadcom cannot claim any other procedural rights than those applicable in an interim measures procedure.









The draft decision









70.


In comparison with the statement of objections, the draft decision has a more limited scope in several respects: the draft decision does not find a dominant position in the market for the supply of systems-on-a-chip for cable modems (and hence finds no prima facie abuse of such dominant position); it does not find any prima facie abuse of a dominant position in the form of ‘naked restrictions’; and it does not find any prima facie abuse as regards the markets for front-end chips and WiFi chipsets. As a result, exclusivity-inducing provisions in agreements with only six, instead of seven, of Broadcom’s direct customers are concerned by the draft decision. Furthermore, the duration of the interim measures has been limited to a maximum of three years.












71.


In accordance with Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which Broadcom has been afforded the opportunity of making known its views. I conclude that it does.





Conclusion









72.


Overall, I consider that the effective exercise of procedural rights has been respected in the interim measures procedure in this case.





Brussels, 8 October 2019.

Wouter WILS




(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

(2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(3)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).

(4)  DG Competition informed Broadcom’s external lawyers of the forthcoming statement of objections and its timing in a meeting from 3 to 4 pm on 25 June 2019, the day before the issuance of the statement of objections.
During two informal telephone conversations in the middle of June 2019, the external lawyers of Broadcom has also been informed by DG Competition that they should prepare to devote resources to the investigation during the summer. However, in the absence of any mention of a possible interim measures procedure, it would have been reasonable for Broadcom to understand this as an advance warning of further requests for information rather than an advance warning of an interim measures procedure.

(5)  https://investors.broadcom.com/static-files/8fdf8974-7641-4c5b-bf84-82edb4215a61

(6)  Judgment in AC-Treuhand v Commission, T-99/04, ECLI:EU:T:2008:256, paragraphs 44 to 60 ; see also Article 4(2)(a) of Decision 2011/695/EU.

(7)  Judgments in Elf Aquitaine v Commission, C-521/09 P, ECLI:EU:C:2011:620, paragraphs 113 to 122, and in AC-Treuhand v Commission, T-27/10, ECLI:EU:T:2014:59, paragraphs 165 to 196; see also Final Report of the Hearing Officer of 22 June 2015 in Case AT.39563 Retail Food Packaging, [2015] OJ C402/6.

(8)  Order in Camera Care v Commission, 792/79 R, ECLI:EU:C:1980:18.

(9)  See the Explanatory Memorandum accompanying the Commission’s legislative proposal, COM(2000) 582 final of 27.9.2000 at page 18 (explanations relating to Article 8 – Interim measures).

(10)  See also Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty (OJ C 101, 27.4.2004, p. 65), paragraph 80.

(11)  Commission Notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 308, 20.10.2011, p. 6).

(12)  Opinion of Advocate General Warner of 22 January 1974 in Commercial Solvents v Commission, 6 and 7/73, ECLI:EU:C:1974:5.

(13)  Judgment of 16 January 2019 in Commission v United Parcel Service, C-265/17 P, ECLI:EU:C:2019:23, paragraph 38; see also Opinion of Advocate-General Kokott of 25 July 2018 in Commission v United Parcel Service, C-265/17 P, ECLI:EU:C:2018:628, paragraph 54 (‘the constraints to which the European competition authority is subject in relation to merger control (not least considerable time pressure, but also limited resources) must have consequences with regard to the manner in which the undertakings concerned make use of their rights of the defence’).

(14)  Judgments of 27 November 1997 in Kaysersberg v Commission, T-290/94, ECLI:EU:T:1997:186, paragraph 113; of 28 April 1999 in Endemol Entertainment v Commission, T-221/95, ECLI:EU:T:1999:85, paragraphs 67, 68, 70 and 84; of 22 October 2002 in Schneider Electric v Commission, T-310/01, ECLI:EU:T:2002:254, paragraph 100; of 25 October 2002 in Tetra Laval v Commission, T-5/02, ECLI:EU:T:2002:264, paragraph 105; and of 14 December 2005 in General Electric v Commission, T-210/01, ECLI:EU:T:2005:456, paragraphs 631, 653 to 655, 666, 680 to 686, as well as 701 and 702.

(15)  More generally, although lacking any explicit exclusion, the Commission’s Notice on Best Practices in its entirety does not appear to cover interim measures procedures.

(16)  See paragraph 37 above.

(17)  See Judgment of 19 January 2016 in Toshiba v Commission, T-404/12, ECLI:EU:T:2016:18, paragraph 56.

(18)  See paragraphs 4 to 8 above.

(19)  See Judgment of 6 January 1974 in Commercial Solvents v Commission, 6 and 7/73, ECLI:EU:C:1974:18, [1974] ECR 225 at 227.

(20)  Opinion of Advocate General Warner of 22 January 1974 in Commercial Solvents v Commission, 6 and 7/73, ECLI:EU:C:1974:5, [1974] ECR 259 at 275.

(21)  See paragraphs 10, 18 to 20 and 23 above.

(22)  See paragraph 5 above.

(23)  See also paragraph 27 above.

(24)  See paragraph 7 above.

(25)  See paragraph 7 above.

(26)  See paragraph 8 above.

(27)  See paragraphs 21 and 22 above.

(28)  See recital 13 of Decision 2011/695/EU.

(29)  See paragraph 12 above.

(30)  See paragraph 57 above.

(31)  See paragraphs 12 and 21 above.

(32)  See slides 12, 18, 28, 30, 33 and 58 of Broadcom’s PowerPoint presentation for the plenary morning session, and slides 4, 40 and 48 of its PowerPoint presentation for the closed session.