Final report of the Hearing Officer [1]

COMP/38.511 — DRAMs

2011/C 180/08

This case concerns a cartel between 10 undertakings producing memory chips [2]. The undertakings are alleged to have coordinated and monitored prices for DRAMs (Dynamic Random Access Memory) and for R-DRAMs (Rambus Dynamic Random Access Memory) sold to major PC/server Original Equipment Manufacturers (OEMs). The overall cartel infringement started as from 1 July 1998 and lasted until 15 June 2002 [3].

It is the first case in which the Commission adopts an infringement decision pursuant to the settlement procedure [4].

Background

The case was triggered by an immunity application submitted in August 2002 by Micron Technology Inc., which was granted conditional immunity on 16 December 2002. Subsequently, between December 2003 and February 2006, Infineon, Hynix, Samsung, Elpida and NEC applied for leniency. No inspections were carried out.

The Commission initiated proceedings against Micron, Infineon, Hynix, Samsung, Elpida, NEC, Hitachi, Mitsubishi, Toshiba and Nanya on 10 February 2009 pursuant to Article 11(6) of Regulation (EC) No 1/2003 [5]. Subsequently, on 13 February 2009, the parties were invited to indicate in writing whether they were prepared to engage in discussions with a view to introduce settlement submissions [6]. All parties accepted the invitation and bilateral settlement discussions followed suit with the Directorate-General for Competition.

The settlement procedure

The settlement discussions were organised in three main phases between April and November 2009 during which period three rounds of formal bilateral meetings took place between the Commission and each of the parties. Generally, the Commission was represented at these meetings by the case team led by a senior official and a member of the Hearing Office as well as the Legal Service.

During the first round of meetings, the parties were orally informed of the objections that the Commission envisaged to raise against them as well as evidence supporting those objections. The parties were also informed of the identity of the other parties, whether or not those parties are leniency applicants, and the fact that they were also involved in settlement discussions. Following this first meeting, the parties were given access at the Directorate-General for Competition's premises to the relevant evidence and oral statements. Parties were also given access to the list of all documents in the Commission’s file in order to enable them to request further access should they so deem necessary to be able to ascertain, notably, their respective position regarding a time period or any other aspect of the cartel. Two parties requested further access to the Commission's file, which was considered justified and granted. However, at this stage no evidence could be taken away from the Commission premises.

A second round was then organised at which the envisaged objections were further discussed in light of the evidence to which access had been granted. The purpose of the second round of meetings was to reach a common understanding between the Commission and the parties with regard to, in particular, the scope and duration of the alleged cartel. By the end of this second round of meetings all parties concerned considered that there was sufficient common understanding with regard to the potential scope and duration of the cartel to continue the settlement discussions. The parties were hence provided with a CD-Rom containing the relevant evidence for review, as well as the list of all documents in the Commission's investigation file.

During the third round, the parties were informed of the range of likely fines to be imposed by the Commission within the framework of the settlement procedure. More particularly, each party was informed, in general terms, of the practical application of the Fining Guidelines in this case. In addition, the parties were given a deadline to introduce their settlement submissions.

Subsequently, all parties introduced formal settlement submissions in which they clearly and unequivocally acknowledged their respective liability for an infringement of Article 101 TFEU and Article 53 of the EEA Agreement. In the settlement submissions, the parties also confirmed (i) that they had been sufficiently informed of the objections the Commission envisaged raising against them and that they had been given sufficient opportunity make their views known thereupon, (ii) that they did not envisage requesting access to file or to be heard in an oral hearing, subject to the condition that the Statement of Objections and the final Decision would reflect their settlement submissions and (iii) that they agreed to receive the Statement of Objections (SO) and the final decision in English.

The Commission adopted, on 4 February 2010, an SO reflecting the parties’ settlement submissions, which was notified to the parties at the Directorate-General for Competition’s premises. Subsequently, and due to a clerical error, the parties were notified of a correction to the SO that had been adopted on 16 February 2010.

All parties confirmed in their reply that the SO corresponded to the content of their settlement submissions and that they remain committed to the settlement procedure. The Commission could therefore proceed directly to a decision pursuant to Articles 7 and 13 of Regulation (EC) No 1/2003.

The draft decision

The draft decision retains the objections raised in the Statement of Objections and reflects hence also the parties’ respective settlement submissions. Accordingly, the draft decision relates only to objections in respect of which the parties have been afforded the opportunity to make known their views.

In view of the above and taking into account that the parties have not addressed any issues concerning access to file or their rights of defence to me or to the member of the Hearing Office attending the settlement meetings, I consider that the right to be heard of all participants to the proceedings has been respected in this case.

Brussels, 10 May 2010.

Michael Albers

[1] Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21).

[2] Elpida, Hitachi, Hynix, Infineon, Micron, Mitsubishi, Nanya, NEC, Samsung and Toshiba (each undertaking forms a group of company).

[3] With regard to R-DRAMs, the cartel started on 9 April 2001.

[4] Commission Regulation (EC) No 622/2008 amending Regulation (EC) No 773/2004 as regards the conduct of settlement procedures in cartel cases (OJ L 171, 1.7.2008, p. 3), and Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ C 167, 2.7.2008, p. 1).

[5] Proceedings were also formally initiated against relevant subsidiaries of the undertakings concerned on 8 April 2009.

[6] Article 10(a)(1) of Regulation (EC) No 773/2004 (OJ L 123, 27.4.2004, p. 18).

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