52003XX1008(01)

Final Report of the Hearing Officer in Cases COMP/35587 PO Video Games - COMP/35706 PO Nintendo Distribution - COMP/36321 Omega Nintendo

(pursuant to Article 15 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)

(2003/C 241/03)

(Text with EEA relevance)

The draft decision in the abovementioned case gives rise to the following observations.

A statement of objections was addressed to Nintendo Corporation Ltd (copied to Nintendo of Europe GmbH), John Menzies plc (copied to THE Games Ltd), Soc. Rep. Concentra LDA, Linea GIG Spa, Nortec SA, Bergsala AB, Itochu Corporation (copied to Itochu Hellas SA) and CD-Contact Data GmbH (copied to Contact-Data Belgium NV) on 25 April 2000. The statement set out the Commissions preliminary view that infringements of Article 81(1) had been committed by Nintendo and the other addressees in relation to the distribution of Nintendo manufactured products. The Commission had opened an ex officio procedure in this case on 11 September 1995 (Case IV/35.706).

The statement of objections also incorporated issues raised in a complaint by Omega Electro BV registered with the Commission on 3 December 1996 (IV/36.321). In accordance with its rights as a complainant, Omega Electro BV was sent a non-confidential version of the statement of objections on 8 June 2000. Omega Electro BV did not submit any comments in response.

The proceedings in this case also rely on documents from an earlier and broader case opened by the Commission in relation to video games in general on 23 May 1995 (Case IV.35.587). Documents from this case were also used in earlier separate proceedings against Nintendo (and others) concerning its licensing practices with regard to independent developers of games for its respective game consoles. A statement of objections was sent to Nintendo in this case on 15 May 1996. In response to the Commissions competition concerns Nintendo amended its EEA NES, SNES and Game Boy licensing agreements. On 18 July 1997 the Commission informed Nintendo that these earlier proceedings against it were closed.

The parties responded to the statement of objections in the present case on individually agreed dates in June and July 2000. They did not request an oral hearing.

The rights to be heard have been respected in the present case.

The draft decision deals only with objections in relation to which the parties have had the opportunity to be heard.

Done at Brussels, 7 October 2002.

Karen Williams