Official Journal of the European Union 8.10.2003 L 255/33 COMMISSION
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8.10.2003 EN Official Journal of the European Union L 255/33 COMMISSION DECISION of 30 October 2002 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (COMP/35.587 PO Video Games, COMP/35.706 PO Nintendo Distribution and COMP/36.321 Omega — Nintendo) (notified under document number C(2002) 4072) (Only the English, Portuguese, Greek, German, Italian, and Swedish texts are authentic) (Text with EEA relevance) (2003/675/EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, 1. THE FACTS Having regard to the Treaty establishing the European Commu- nity, 1.1. The parties to the proceeding (1) The parties will be referred to as follows in the present Having regard to the Agreement on the European Economic decision: in the factual part the authors of the infringe- Area, ment will be mentioned. In the legal assessment, refer- ence will be made to the actual addressees of this Decision. Having regard to Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (1), as last amended by Regulation (EC) No 1/2003 (2) and in particular Articles 3 and 15(2) thereof, 1.1.1. The Nintendo group of companies Having regard to the complaint lodged by Omega Electro BV (2) The ultimate parent company of the Nintendo group of on 28 November 1996, alleging infringement of Articles 81 companies is Nintendo Corporation Ltd (NCL), a listed and 82 of the Treaty by Nintendo Netherlands BV and company established in Kyoto, Japan. Nintendo's busi- Nintendo UK Ltd and requesting the Commission to put an ness in the EEA is conducted by the following wholly- end to that infringement and to impose a fine, owned (5) subsidiaries: — Having regard to the Commission Decision of 25 April 2000 Nintendo of Europe GmbH (NOE). NOE is Ninten- to initiate proceedings in this case, do's main EEA-based subsidiary. It coordinated certain business practices of Nintendo in Europe and was the exclusive distributor for Germany, at least from January 1991 (6) until 31 December 1997, Having given the undertakings concerned the opportunity to make known their views on the objections raised by the Commission in accordance with Article 19(1) of Regulation — Nintendo of America Inc (NOA), although not itself No 17 and with Commission Regulation (EC) No 2842/98 of distributing Nintendo's products in the EEA, was also 22 December 1998 on the hearing of parties in certain responsible for the coordination of certain of proceedings under Articles 85 and 86 of the EC Treaty (3), Nintendo's business practices in Europe during the period relevant for this Decision, Having regard to the final report of the Hearing Officer in this — case (4), Nintendo Netherlands BV (NN). NN was the exclu- sive distributor for the Netherlands, at least from 1 January 1993 (7) until 31 December 1997. This company is currently called Nintendo Benelux BV, After consulting the Advisory Committee on Restrictive Prac- tices and Dominant Positions, — Nintendo France SARL (NF). NF was the exclusive distributor for France, at least from 31 December WHEREAS: 1992 (8) until 31 December 1997, (1) OJ 13, 21.2.1962, p. 204/62. (5) See column 1(b) on pages 132 to 136 of the Commission's file. (2) OJ L 1, 4.1.2003, p. 1. (6) Page 415. (3) OJ L 354, 30.12.1998, p. 18. (7) Page 2667. (4) OJ C 241, 8.10.2003. (8) Page 2216. L 255/34 EN Official Journal of the European Union 8.10.2003 — Nintendo España SA (NE). NE was the exclusive Hellas EPE is, ultimately, a wholly-owned subsidiary of distributor for Spain, at least from 1 January Itochu Corporation (hereafter referred to Itochu). Itochu 1994 ( 9) until 31 December 1997, Corporation is headquartered in Tokyo, Japan. — Nintendo Belgium SPRL (NB) was the exclusive distributor for Belgium and Luxembourg, from at (10) Nortec AE (hereafter referred as to Nortec) was Ninten- least 1 January 1994 until April 1997 (10), do's exclusive distributor for Greece subsequent to Itochu from at least 4 April 1997 until 31 December 1997 ( 16); — Nintendo UK Ltd (NUK) was the exclusive distributor for the United Kingdom and Ireland from at least 11 March 1993 until 4 August 1995 ( ). (11) CD-Contact Data GmbH was Nintendo's exclusive distri- butor for Belgium and Luxembourg from at least ‘ ’ April 1997 until 31 December 1997. For this purpose, (3) The term Nintendo may refer to any or all of those it founded a wholly-owned subsidiary, Contact Data companies in the Nintendo group. Belgium NV, for distributing the products in this terri- tory (17) (referred to hereafter as Contact). 1.1.2. The independent Nintendo distributors (12) On 29 September 1998, Activision Inc, a company established under the laws of the Stare of Delaware (4) In other territories, Nintendo had appointed indepen- (USA), gained control over CD-Contact Data GmbH by dent exclusive distributors. purchasing all its shares. (5) THE Games Ltd, a trading division of John Menzies (13) Subsequently, on 9 June 1999, CD-Contact Data GmbH Distribution Limited, which is a wholly-owned founded a wholly-owned subsidiary, CD Contact data BV subsidiary of John Menzies plc, was appointed in established in the Netherlands. All shares in Contact August 1995 as independent exclusive distributor for Data Belgium NV, previously held by CD-Contact Data the United Kingdom and Ireland, after NUK ceased GmbH, were then transferred to this newly founded performing this function (together referred to hereafter company. CD-Contact Data GmbH continues to exist as as THE). THE remained Nintendo's exclusive distributor a holding company (18). for this territory until at least 31 December 1997. (6) Chaves Feist & Cia LDA, later called Soc. Rep. Concentra 1.1.3. Omega LDA and, since September 2001, Concentra — Produtos para crianças SA (hereafter referred to as Concentra) was Nintendo's exclusive distributor for Portugal, at least ‘ ’ from 14 May 1991 until 31 December 1997 (12); (14) Omega Electro BV (hereafter referred to as Omega )isa company established in the Netherlands that is active in the import and sale of electronic games. On (7) Linea GIG SpA (hereafter referred to as Linea) was 26 November 1996, it lodged a complaint under Nintendo's exclusive distributor for Italy, at least from Article 3(2)(b) of Regulation No 17 that primarily 1 October 1992 (13) until 31 December 1997. concerned the distribution of Nintendo game cartridges and consoles and contained a variety of allegations, inter alia, the hindrance by Nintendo of parallel trade and its (8) Bergsala AB (hereafter referred to as Bergsala) has been operation of a resale price maintenance policy in the Nintendo's exclusive distributor for Sweden since 1981 Netherlands. and, since 1986, also for Denmark, Norway, Finland and Iceland (14). 1.2. Relevant product markets (9) Itochu Hellas EPE (in correspondence often referred to as Itochu Hellas Ltd) was Nintendo's exclusive distri- butor for Greece at least from 14 May 1991 until (15) This case relates to game consoles and video games or February 1997. All shares in Itochu Hellas EPE were game cartridges, which allow users to play games always held by Itochu Corporation or wholly-owned displayed on a screen. subsidiaries of Itochu Corporation (15). Thus, Itochu (16) Page 2595, 1622 to 1624. (9) Page 136. (17) Pages 138 to 153. CD-Contact GmbH is 100 % owned by Contact (10) Page 132. Vermögensverwaltung GmbH The latter company and Contact (11) Pages 426, 313 and 279A. Belgium NV had identical owners and board of directors. Contact (12) Page 244, letter of Concentra dated 17 September 2002. Data Belgium was created by CD-Contact Data GmbH on 27 March (13) Page 200. 1997. (pages 2531 to 2535 and 2618). That Contact Data Belgium (14) See Bergsala's reply to the statement of objections. BV was a wholly-owned subsidiary of CD-Contact Data GmbH also (15) Itochu's reply to the statement of objections, paragraph 10. See also appears from Contact's submission of 19 November 2001. Itochu submission of 26 November 2001. (18) Contact's submission of 19 November 2001. 8.10.2003 EN Official Journal of the European Union L 255/35 (16) In the correspondence of the parties the term ‘hardware’ is often used as a synonym for ‘game console’. In this Nintendo Sega Sony Decision, the term ‘game console’ is used systematically, except for direct quotations. Similarly, in the correspon- Static 64-bit Nintendo None None dence of the parties the term ‘software’ is often used as console 64 a synonym for ‘game cartridge’. In this Decision, the term ‘game cartridge’ is used systematically, except for direct quotations. 1.2.1.1. Personal computers and game consoles (17) During the period of the infringement, Nintendo arenotsubstitutableproducts produced various types of game consoles (see table 1 below) and game cartridges for use with these game consoles. Collectively, they are referred to hereinafter as ‘ ’ 19 the products ( ). Demand side (19) Like game consoles, personal computers (PCs) allow 1.2.1. The game consoles games to be played. However, a PC cannot be regarded as a substitute for either a static or a hand-held game console for the following reasons. (18) Game consoles are electronic devices dedicated to and specifically designed for playing video games. The user interface is a simple pad or a control, such as a ‘joy (20) PCs and game consoles are intended to fulfil different stick’, which allows the user to control the movements consumer needs: of the characters on the screen.