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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Topps Europe v Commission (Judgment) [2017] EUECJ T-699/14 (11 January 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T69914.html Cite as: ECLI:EU:T:2017:2, [2017] EUECJ T-699/14, EU:T:2017:2 |
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JUDGMENT OF THE GENERAL COURT (Third Chamber)
11 January 2017 (*)
(Competition — Agreements, decisions and concerted practices — Abuse of dominant position — Grant of licences in respect of intellectual property rights for football-related collectibles — Decision rejecting a complaint — Access to the file — Article 8(1) of Regulation (EC) No 773/2004 — Manifest error of assessment — Relevant market — Exclusive licence – Single branding — Excessive prices)
In Case T‑699/14,
Topps Europe Ltd, established in Milton Keynes (United Kingdom), represented initially by R. Vidal, A. Penny, Solicitors, and B. Kennelly, QC, then by R. Subiotto, QC, and A. Cleenewerck de Crayencour, lawyer, and subsequently by T. de la Mare, QC,
applicant,
v
European Commission, represented by F. Jimeno Fernández and M. Farley, acting as Agents,
defendant,
supported by
Fédération internationale de football association (FIFA), established in Zurich (Switzerland), represented by A. Barav and D. Reymond, lawyers,
and by
Panini SpA, established in Modena (Italy), represented by F. Wijckmans, F. Tuytschaever and M. Varga, lawyers,
interveners,
APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2014) 5123 final of 15 July 2014 rejecting the complaint lodged by the applicant in Case AT.39899 — Licensing of intellectual property rights for football collectibles,
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas, President, E. Bieliūnas and I.S. Forrester (Rapporteur), Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 10 June 2016,
gives the following
Judgment
Background to the dispute
1 The applicant, Topps Europe Ltd, is an undertaking which markets collectible products in Europe.
2 On 28 March 2011, the applicant lodged a complaint with the European Commission concerning the infringement of Articles 101 TFEU and 102 TFEU by Panini SpA, the Fédération internationale de football association (‘FIFA’), the Union of European Football Associations (‘UEFA’) and a number of football governing bodies and players’ associations in connection with the licensing and acquisition of various intellectual property rights (‘IP rights’) for the purposes of producing stickers and trading cards relating to national and international football tournaments (‘collectibles’).
3 On 14 June 2011, following a request from the Commission, the applicant narrowed the scope of its complaint to cover only Panini, FIFA, UEFA, the Fédération Française de Football (French Football Association, ‘the FFF’), the Associazione Italiana Calciatori (Italian Footballers’ Association, ‘the AIC’), the Real Federación Española de Fútbol (Royal Spanish Football Federation, ‘the RFEF’) and the Deutscher Fußball-Bund (German Football Association, ‘the DFB’) (collectively, ‘the targeted parties’), and to claim infringement of Articles 101 TFEU and 102 TFEU only in respect of licensing and the grant of IP rights for the FIFA Football World Cup (‘the World Cup’) and UEFA European Football Championship (‘Euro’) tournaments.
4 In its complaint, the applicant claimed that the targeted parties had infringed Article 101 TFEU by: (i) entering into long-term exclusive agreements with Panini, resulting in the total foreclosure of the market for collectibles relating to the World Cup and Euro tournaments; (ii) bundling licences to cover stickers and trading cards; (iii) failing to organise open, transparent, fair and non‑discriminatory tender processes for the granting of licences; and (iv) on the downstream market, in the imposition by Panini of wide-ranging exclusive purchasing obligations on its distributors and partners throughout the distribution chain.
5 The applicant also claimed that the targeted parties had infringed Article 102 TFEU by: (i) having consistently discriminated against the applicant in favour of Panini by refusing to accept any form of bid by the applicant or by treating it differently and unfairly when it was permitted to make an offer; (ii) refusing to license the IP rights in question to the applicant; and, as concerns Panini, (iii) charging excessive prices for its football collections and (iv) imposing exclusivity clauses on its distributors and points of sale downstream.
6 On 4 July 2011, the Commission sent a non-confidential version of the complaint to the targeted parties. The Commission sent a request for information under Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) on 5 July 2011 to Panini, UEFA and FIFA, and on 8 July 2011 to the AIC, the FFF, the RFEF and the DFB. The targeted parties submitted their observations and their replies to the requests for information between July and November 2011. The applicant submitted additional observations by letters of 18 October 2011 and 8 February 2012.
7 On 16 May 2012, the Commission sent another request for information to the applicant, Panini, the AIC and UEFA, to which they responded in June 2012.
8 On 28 September 2012, the applicant provided the Commission with an update on its ongoing discussions with the national football associations.
9 By letter of 26 March 2013, the Commission informed the applicant of its intention to reject the complaint under Article 7(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18), on the ground of a lack of EU interest in conducting further investigation (‘the provisional assessment’). The applicant submitted observations by letter of 25 April 2013. The applicant stated, in particular, that it regarded the Euro and World Cup collectibles as constituting a separate downstream market and that the IP rights relating to those tournaments were indispensable for market entry. According to the applicant, the Commission should also have concluded that the targeted parties had discriminated against the applicant and that their practices had led to long periods of de facto exclusivity. Lastly, the applicant also claimed that the Commission had failed to examine the exclusive purchasing obligations imposed by Panini.
10 On 14 June 2013, the Commission sent another request for information to Panini in relation to the imposition of exclusive purchasing obligations to which Panini responded on 1 July 2013. On 16 August 2013, the Commission sent requests for information to some of Panini’s importers concerning the alleged exclusive purchasing obligations, to which the importers responded in August and September 2013.
11 On 11 July 2013, the applicant submitted additional observations on the provisional assessment. On 3 September 2013, the Commission sent Panini a non‑confidential version of those observations and Panini submitted its observations on 26 September 2013.
12 On 27 September 2013, the Commission sent the applicant a supplementary letter under Article 7(1) of Regulation No 773/2004 relating only to the potential infringements of Articles 101 TFEU and 102 TFEU arising from the alleged exclusive purchasing obligations imposed by Panini (‘the supplemental provisional assessment’).
13 On 29 October 2013, the applicant submitted observations on the supplemental provisional assessment. On 4 December 2013, the applicant submitted observations on the responses of the RFEF and the FFF to the Commission’s request for information. On 16 December 2013, the applicant provided the Commission with a copy of a letter sent to UEFA’s agent in connection with the invitations to tender for collectibles for the years 2015 to 2017. On 15 January 2014, Panini submitted further observations to the Commission. On 21 March 2014, the applicant sent another letter providing an update on the tender processes of the FFF and the DFB.
14 On 15 July 2014, the Commission adopted Decision C(2014) 5123 final rejecting the complaint lodged by the applicant (‘the contested decision’). In the contested decision, the Commission considered, in essence, that it would be disproportionate to pursue the investigation, which would involve carrying out complex factual and economic analyses, given the considerable resources which would have to be devoted thereto and the limited likelihood of establishing the existence of an infringement on the basis of the information available and the information provided by the applicant.
15 As regards the claims relating to Article 101 TFEU, the Commission took the view, first, that the duration of the licensing agreements did not prima facie appear to be unreasonably long or capable of excluding Panini’s competitors from the market. Secondly, it took the view that the granting of IP rights as a bundle for collectible stickers and cards did not appear to be anticompetitive. Thirdly, it considered that the applicant’s claims regarding the absence of open, transparent, fair and non-discriminatory tender processes did not seem to be sufficiently substantiated. Fourth and lastly, as regards the claims that Panini had imposed exclusive purchasing obligations, the Commission considered that the explanations provided by Panini seemed plausible and that there was sufficient competition on the downstream market.
16 As regards the claims relating to Article 102 TFEU, the Commission took the view, first, that it seemed unlikely that the relevant downstream market should be restricted to World Cup and Euro collectibles. Secondly, it took the view that holding all the IP rights did not appear to be indispensable in order to produce collectibles relating to those two tournaments and that the applicant’s claims that the targeted parties hold dominant positions appeared to be based on an excessively narrow definition of the relevant markets. Thirdly, the Commission considered that the applicant’s claims of abuse did not appear to be sufficiently substantiated, particularly in the light of the history of the correspondence between the applicant and the targeted parties, the existence of unofficial collections and the lack of evidence that the emergence of a new product had been prevented. Fourth and lastly, it considered that the applicant’s claims regarding the excessive prices charged by Panini and the extent of the exclusive purchasing obligations allegedly imposed by it did not appear to be substantiated.
17 The contested decision was notified to the applicant on 17 July 2014.
Procedure and forms of order sought
18 By application lodged at the Court Registry on 27 September 2014, the applicant brought the present action.
19 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
20 The Commission contends that the Court should:
– dismiss the action in its entirety;
– order the applicant to pay the costs.
21 By document lodged at the Court Registry on 16 January 2015, FIFA sought leave to intervene in the proceedings in support of the form of order sought by the Commission.
22 By document lodged at the Court Registry on 30 January 2015, Panini sought leave to intervene in the proceedings in support of the form of order sought by the Commission.
23 By two orders of the President of the Third Chamber of 2 June 2015, FIFA and Panini were granted leave to intervene in support of the Commission.
24 By documents lodged on 21 and 24 August 2015 respectively, FIFA and Panini each submitted a statement in intervention. FIFA and Panini requested, inter alia, that the applicant be ordered to pay the costs. The applicant and the Commission each submitted their observations within the prescribed period.
25 At the hearing held on 10 June 2016, the parties presented their oral arguments and answered the oral questions asked by the Court.
Law
26 The applicant puts forward two pleas in support of its action. The first plea alleges an infringement of its procedural rights in so far as the Commission refused to grant the applicant access to documents on which the Commission based its provisional assessment and supplemental provisional assessment under Article 7(1) of Regulation No 773/2004. The second plea alleges a manifest error of assessment of the facts and an infringement of the obligation to state reasons in so far as the Commission rejected the complaint for lack of EU interest on the basis that an infringement of Articles 101 TFEU and 102 TFEU was unlikely to be established even if the investigation were pursued and that further investigation would, therefore, be disproportionate.
The first plea in law, alleging infringement of the applicant’s procedural rights
27 By its first plea in law, the applicant submits, in essence, that the Commission refused it access to documents on which the Commission based its provisional assessment and supplemental provisional assessment under Article 7(1) of Regulation No 773/2004 and thereby infringed its procedural rights.
28 The Commission disputes the applicant’s claims and contends that the applicant had access to all the documents on which the Commission had in fact based its provisional assessment and supplemental provisional assessment.
Preliminary remarks
29 First, it is to be noted that, according to settled case-law, proceedings initiated further to a complaint do not constitute adversarial proceedings between the companies concerned. They are proceedings initiated by the Commission, following an application, in fulfilment of its duty to ensure that the rules on competition are observed. It follows that the companies which are the subject of the investigation and the companies which have submitted a complaint are not in the same procedural situation and the latter cannot invoke the right to a fair hearing. The complainants must, on the other hand, be given the opportunity to defend their legitimate interests in the course of the proceedings initiated by the Commission and therefore be associated closely with them, although the procedural rights of the complainants are not as far-reaching as the right to a fair hearing of the companies which are the subject of the Commission’s investigation (see judgment of 11 July 2013, Spira v Commission, T‑108/07 and T‑354/08, not published, EU:T:2013:367, paragraph 59 and the case-law cited).
30 Secondly, it is also to be noted that the procedural rights of the complainants whose complaint the Commission intends to reject are set out in the provisions of Regulation No 773/2004. In accordance with the wording of Article 8(1) of Regulation No 773/2004 and settled case-law, the complainants’ right of access does not have the same scope as the right of access to the Commission file afforded to persons, undertakings and associations of undertakings that have been sent a statement of objections by the Commission, which relates to all documents which have been obtained, produced or assembled by the Commission Directorate-General for Competition during the investigation, but is limited solely to the documents on which the Commission bases its provisional assessment (see, to that effect, judgment of 11 July 2013, Spira v Commission, T‑108/07 and T‑354/08, not published, EU:T:2013:367, paragraphs 64 and 65 and the case-law cited).
31 The applicant’s objections relating to the infringement of its procedural rights as a complainant and, in particular, the arguments that the Commission based the conclusions of its provisional assessment and of its supplemental provisional assessment in part on documents to which the applicant did not have access must be examined in the light of those principles.
32 In the present case, it must first of all be noted that the Commission annexed to its provisional assessment and supplemental provisional assessment two lists setting out the documents on which it stated that it had based its conclusions. In addition to the information provided by the applicant itself, this concerned the following documents:
– preliminary observations of Panini, dated 30 September 2011;
– observations of UEFA, dated 30 August 2011;
– Panini’s response to the Commission’s request for information, dated 6 June 2012;
– Panini’s observations, dated 1 July 2013;
– the FFF’s observations, dated 30 September 2011;
– the RFEF’s observations, dated 27 October 2011;
– emails from Panini’s importers dated 19 and 2l August 2013, and 4 and 5 September 2013.
33 It is not in dispute that all those documents were indeed communicated to the applicant. It is also not in dispute that the applicant had access neither to the observations and replies to the requests for information lodged by the AIC, the DFB and FIFA, nor the observations and replies to the requests for information lodged by Panini and some of its importers, with the exception of those listed in paragraph 32 above.
34 It must therefore be examined whether, as the Commission contends, the documents listed in paragraph 32 above, together with the information provided by the applicant, provide a sufficient basis for the Commission’s conclusions in the provisional assessment and the supplemental provisional assessment, so that it may be concluded that the Commission based the conclusions of its provisional assessment and supplemental provisional assessment solely on those documents, or whether, as the applicant submits, the provisional assessment and the supplemental provisional assessment are also based in part on certain documents to which the applicant did not have access, in breach of its procedural rights.
The reference to the information provided by the targeted parties
35 As regards the statements in the provisional assessment and the contested decision that those documents are based on the information provided by ‘the targeted parties’, the applicant submits that those statements indicate that the provisional assessment is based on all of the information provided by all of the targeted parties, including the observations and replies to the requests for information to which it did not have access.
36 That argument is based on a misinterpretation of the provisional assessment and cannot be accepted. As the Commission correctly states, the applicant’s argument is purely semantic. The Court considers that the reference to the information provided ‘by the targeted parties’, in particular in paragraphs 13 and 21 of the provisional assessment, is generic. Even if the Commission could have been more precise, the reference is to the information provided by the targeted parties in general, as opposed to that provided by the applicant. Contrary to the applicant’s claims, it may not be concluded from such a general reference that the Commission necessarily based its conclusions on all of the information provided by all of the targeted parties, in particular on the observations and replies to the requests for information to which the applicant did not have access. Accordingly, the Commission’s conclusions relating to the definition of the relevant market are substantiated by the observations of Panini, UEFA and the FFF to which the applicant had access. Similarly, as regards paragraph 27 of the contested decision, it is sufficient to note that it may be concluded on its own from the information provided by the applicant that the bundling of IP rights for stickers and trading cards is a standard industry practice.
The conclusions as to the duration of the agreements
37 As regards the factual statement in paragraph 14 of the provisional assessment that ‘[t]he licensing agreements — with the exception of FIFA’s agreements — are typically for four years, i.e. they cover only one tournament, and this does not prima facie appear to be an unreasonably long period’, the applicant submits that the Commission could only have formed that conclusion on the basis of the information provided by all of the targeted parties, in particular the observations to which the applicant did not have access. Similarly, the factual statement in footnote No 3 of the provisional assessment, according to which the agreements concluded with FIFA ‘cover two tournaments, i.e. they are concluded for eight years’, is necessarily based on information provided by FIFA to which the applicant did not have access.
38 First, it must be found, in the light of paragraphs 14 and 17 of the provisional assessment, that the duration of the licensing agreements is one of the key reasons for which the Commission concluded that an infringement of Article 101 TFEU was unlikely.
39 Secondly, the Commission seeks to rely on the contested decision in order to argue that it did not draw any conclusions as to the precise duration of the licensing agreements. It notes, therefore, that it merely states, in paragraph 23 of the contested decision, that ‘the duration of the licensing agreements does not prima facie appear to be unreasonably long (typically they cover only one tournament, with some exceptions)’ and that the duration of the FIFA agreements ‘exceeds four years’.
40 In that regard, it is to be borne in mind that Article 8(1) of Regulation No 773/2004 provides that ‘the complainant may request access to the documents on which the Commission bases its provisional assessment’. It is, therefore, apparent from the very wording of that provision that the complainant is entitled to have communicated to himself all the documents on which the Commission based its provisional assessment, even if it subsequently decided no longer to rely on some of those documents in the decision rejecting the complaint.
41 In the present case, it is not claimed that the Commission based the contested decision on documents other than those on which it based its provisional assessment. It must, therefore, be examined solely on the basis of the wording of the provisional assessment whether the applicant’s procedural rights were respected.
42 Thirdly, as regards the statement that the licensing agreements are ‘typically’ for four years, it may not be inferred from that wording, contrary to the applicant’s claims, that all the licensing agreements at issue are for four years, nor that the all the targeted parties typically conclude licensing agreements for four years. The word ‘typically’ is an imprecise word. The use of that word does not imply that the FIFA licensing agreements are necessarily the only exceptions to the observation that the licences are ‘typically’ for four years, even if it is the only exception expressly referred to in the provisional assessment. The word ‘typically’ implies at most that a number of licensing agreements the subject of the complaint are in fact for four years. That is indeed the case. Consequently, it is apparent from UEFA’s observations of 30 August 2011 that UEFA had in fact concluded a contract for Euro 2012 covering only a single tournament. Similarly, it is apparent from the FFF’s observations of 30 September 2011 that its contract with Panini was for four years. Lastly, since the Euro and the World Cup are organised every four years, it would not be surprising that the licensing agreements concerning the related IP rights follow the same cycle.
43 The wording of the provisional assessment may not, therefore, be understood as providing information on the duration of the licensing agreements concluded by the other targeted parties, namely the AIC and the DFB, whose observations were not communicated to the applicant, and the RFEF, whose information on the duration of its licensing agreement was redacted in the non-confidential version of its observations communicated to the applicant. Consequently, that wording may not be understood as indicating that the Commission necessarily relied on those observations in order to reach its conclusions in its provisional assessment.
44 Fourthly, as regards the duration of the FIFA agreements, it must be noted that the applicant had stated in its observations of 14 June 2011 that ‘FIFA [had] granted Panini an exclusive licence covering two consecutive FIFA World Cups’. Contrary to the applicant’s claims, the conclusion in footnote No 3 of the provisional assessment that the FIFA licensing agreements ‘cover two tournaments, i.e. they are concluded for eight years’ is not, therefore, necessarily based on information provided by FIFA itself. The conclusion that those agreements are entered into for eight years seems to be merely a deduction concerning the duration of the licensing agreement on the basis of the information provided by the applicant itself regarding the number of World Cups covered by that agreement, not an independent finding of fact.
45 In the light of the foregoing, it is not apparent from the provisional assessment that the Commission based its conclusions on the duration of the licensing agreements on information not communicated to the applicant.
The conclusions on the organisation of the calls for tenders
46 As regards the statement in paragraph 28 of the provisional assessment that ‘some of the national football federations also seem to have negotiated with [the applicant] about a possible contract’, the applicant submits that such a conclusion is necessarily based on certain documents to which it did not have access.
47 In that regard, it must, first, be noted that the use of the word ‘some of’ indicates that the conclusion in paragraph 28 of the provisional assessment does not refer to all the national football associations at issue, but, in an undefined manner, to one or more of them only. In support of its conclusion, the provisional assessment mentions in footnote No 13 the fact that the applicant negotiated with the FFF and the DFB. Contrary to the applicant’s claims, it may not, therefore, be concluded from the wording used in the provisional assessment that the Commission necessarily relied on the practices of other national football federations.
48 Secondly, it must be noted that the relevant documents relating to the applicant’s relationship with the FFF were produced by the applicant itself. Admittedly, upon reading those documents it is apparent that they related to negotiations with the FFF concerning the French Ligue 1 (First Division) and Ligue 2 (Second Division) rights, not to rights relating to the World Cup or the Euro. Nonetheless, it was permissible for the Commission to use that example in support of its conclusions, since the applicant itself stressed its relevance when stating in its complaint that ‘its experience of attempting to acquire rights for the French national team and for Ligue 1 exemplifie[d] many of the difficulties it ha[d] encountered across Europe’. In addition, the Commission’s conclusion on the existence of negotiations with ‘some of’ the national football federations may be based solely on the existence — which is not disputed — of such negotiations between the applicant and the DFB.
49 Thirdly, as regards the conclusions on the DFB’s practices, the Commission states in its provisional assessment that the ‘the German DFB invited four companies, including [the applicant], to make offers for collectibles in 2011’.
50 In that regard, it is to be noted that the applicant had itself stated to the Commission that it had been invited to make a bid concerning the DFB’s rights for three international tournaments. Admittedly, the provisional assessment also provides information on the exact number of undertakings participating in the call for tenders (four) and that information can only have come from the DFB’s observations, to which the applicant did not have access.
51 However, as the Commission contends, it is the fact that the applicant participated in the call for tenders, not the exact number of companies invited to participate in it, which rebuts its accusation of discrimination against itself and enables the open nature of the call for tenders organised by the DFB to be demonstrated. The failure to communicate the DFB’s observations on that point has not, therefore, resulted in the applicant’s rights of defence being infringed since the information not disclosed could not have affected the content of the Commission’s provisional assessment (see, to that effect, judgment of 29 June 2006, SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraph 98). The Commission could have relied solely on the relationship between the DFB and the applicant, irrespective of the number of the other participants in the call for tenders organised by the DFB, in support of its conclusion set out in paragraph 28 of the provisional assessment.
The conclusions on the probative value of the presentations from the investment banks
52 As regards the conclusion in paragraph 48 of the contested decision as to the highly relative nature of the probative value of the investment banks’ presentations on Panini, it is sufficient to note that this is the Commission’s own assessment based on the presentations and their context and purpose. It is entirely permissible for the Commission to assess the probative value of evidence independently.
53 It follows from all the foregoing that the first plea in law must be rejected as unfounded.
The second plea in law, alleging manifest errors of assessment and infringements of the obligation to state reasons
54 By its second plea in law, the applicant submits, in essence, that the Commission committed manifest errors of assessment in rejecting its complaint under Article 7(2) of Regulation No 773/2004 and infringed its obligation to state reasons. The plea is divided into five parts.
55 By the first part of the second plea in law, the applicant submits that the Commission committed a manifest error of assessment and infringed its obligation to state reasons in concluding that there was no EU interest in pursuing its investigation on the basis that there was a very limited likelihood of establishing an infringement and that pursuing the investigation would be disproportionate.
56 By the second part of the second plea, the applicant submits that the Commission committed manifest errors of assessment in concluding that it was unlikely that the exclusive IP rights licences to produce World Cup and Euro collectibles are contrary to Article 101 TFEU.
57 By the third part of the second plea, the applicant submits that the Commission committed manifest errors of assessment in concluding that it was unlikely that Panini’s practices on the downstream market are contrary to Article 101 TFEU.
58 By the fourth part of the second plea, the applicant submits that the Commission committed manifest errors of assessment and infringed its obligation to state reasons when defining the relevant market.
59 By the fifth part of the second plea, the applicant submits that the Commission committed manifest errors of assessment as regards the alleged infringements of Article 102 TFEU.
60 The Commission disputes those arguments.
Preliminary remarks
61 It should be recalled that Article 7 of Regulation No 773/2004 does not give the complainant the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement and does not oblige the Commission to continue the proceedings, whatever the circumstances, right up to the stage of a final decision (see, to that effect, judgments of 19 September 2013, EFIM v Commission, C‑56/12 P, EU:C:2013:575, paragraphs 57 and 82; of 18 September 1992, Atomic v Commission, T‑24/90, EU:T:1992:97, paragraph 76; and of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 80 (not published) and the case-law cited).
62 The Commission, entrusted by Article 105(1) TFEU with the task of ensuring application of the principles laid down in Articles 101 TFEU and 102 TFEU, is responsible for defining and implementing the orientation of EU competition policy. In order to perform that task effectively, it is entitled to give differing degrees of priority to the complaints brought before it and may exercise its discretion in that regard. The Commission is entitled, inter alia, to refer to the interest of the EU in determining the degree of priority to be given to the various complaints it receives (judgments of 19 September 2013, EFIM v Commission, C‑56/12 P, EU:C:2013:575, paragraph 83, and of 18 September 1992, Atomic v Commission, T‑24/90, EU:T:1992:97, paragraph 77; see also judgment of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 81 (not published) and the case-law cited).
63 While judicial review of decisions rejecting complaints must not, admittedly, lead to the General Court substituting its own assessment of the EU interest for that of the Commission, it must be pointed out that the discretion enjoyed by the Commission in that regard is not unlimited, however. The Commission is required to consider attentively all the matters of fact and of law which the complainants bring to its attention (see judgments of 19 September 2013, EFIM v Commission, C‑56/12 P, EU:C:2013:575, paragraph 84 and the case-law cited, and of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 82 (not published) and the case-law cited).
64 In order to assess the EU interest in further investigation of a case, the Commission must take account of the circumstances of the individual case, especially the matters of law and fact set out in the complaint referred to it. In particular, the Commission is required, after evaluating with all due care the matters of fact and law identified by the complainant, to weigh up the significance of the alleged infringement as regards the functioning of the internal market against the probability of its being able to establish the existence of the infringement and the extent of the investigative measures required in order to fulfil, under the best possible conditions, its task of ensuring that Articles 101 TFEU and 102 TFEU are complied with (see judgment of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 83 (not published) and the case-law cited).
65 However, given that the assessment of the EU interest raised by a complaint depends on the circumstances of each individual case, the number of assessment criteria to which the Commission may refer should not be limited, nor, conversely, should the Commission be required to have recourse exclusively to certain criteria. In view of the fact that, in an area such as that governed by competition law, the legal and factual context may vary considerably from one case to another, it is possible to apply criteria which had not hitherto been envisaged or to give priority to a single criterion in assessing the EU interest (see judgments of 19 September 2013, EFIM v Commission, C‑56/12 P, EU:C:2013:575, paragraph 85 and the case-law cited, and of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 84 (not published) and the case-law cited).
66 Lastly, it should be noted that judicial review of decisions rejecting complaints must not lead to the General Court substituting its own assessment of the EU interest for that of the Commission and must focus on whether or not the contested decision is based on materially incorrect facts or is vitiated by an error of law, a manifest error of appraisal or misuse of powers (see judgment of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 85 (not published) and the case-law cited).
67 The second plea in law must be examined in the light of those principles. In that regard, it is expedient to begin by examining the first and fourth parts of the plea.
The first part of the second plea in law, alleging manifest errors of assessment and an infringement of the obligation to state reasons as regards the absence of an EU interest
68 By the first part of the plea, the applicant submits that the Commission’s finding concerning the absence of an EU interest, on the basis of the limited likelihood of establishing an infringement of competition law and the extent of the investigative measures required, is vitiated by a manifest error of assessment. The Commission also committed a manifest error of assessment in relying on that finding alone and, in so doing, infringed its obligation to state reasons.
69 The Commission disputes those arguments.
70 In that regard, it is sufficient to note, first, that according to the settled case-law, the Commission may reject a complaint for a lack of sufficient EU interest in continuing its investigation solely on the ground that there is only a limited likelihood of establishing an infringement of Articles 101 TFEU and 102 TFEU and the extent of the investigative measures required is disproportionate (see, to that effect, judgment of 16 January 2008, Scippacercola and Terezakis v Commission, T‑306/05, not published, EU:T:2008:9, paragraphs 187 to 190). In addition, as the Commission rightly argues, given that the decision rejecting the complaint was based on those grounds alone, it would have been inappropriate and pointless for it to take into account factors such as the gravity, duration and harm caused by the alleged infringements, which presupposed the existence of an infringement.
71 The Commission did not, therefore, commit a manifest error of assessment or err in law in relying solely on the limited likelihood of establishing an infringement of Articles 101 TFEU and 102 TFEU and on the disproportionate nature of the investigative measures required. The applicant’s arguments seeking to dispute the limited likelihood of establishing an infringement of Articles 101 TFEU and 102 TFEU will be examined when the second to fifth parts of the second plea in law are considered.
72 Secondly, it is apparent from the contested decision that the Commission analysed the evidence adduced by the applicant during the administrative procedure. In addition, the Commission based the conclusion that there was a lack of EU interest in continuing to investigate the practices criticised in the complaint (i) on the finding that there was a limited likelihood of an infringement in the light of the information in the complaint and the results of a first investigation and (ii) on the disproportionate effort which would be required to find a possible infringement of Article 102 TFEU; it also clearly set out in the contested decision the grounds on which it reached those conclusions. In those circumstances, it must be held that the contested decision rejecting the complaint is sufficiently reasoned.
73 Consequently, the first part of the second plea in law must be rejected.
The fourth part of the second plea in law, alleging manifest errors of assessment and an infringement of the obligation to state reasons as regards the definition of the relevant markets
74 By the fourth part of the plea, the applicant submits, in essence, that the Commission committed a manifest error of assessment in concluding that it was likely that the relevant downstream markets were not confined to, firstly, World Cup collectibles sold to children aged 6 to 14 and, secondly, Euro collectibles sold to children aged 6 to 14, and that the relevant upstream markets were not confined to the IP rights which are indispensable in order to produce such collectibles. The Commission also infringed its obligation to state reasons.
75 The Commission disputes those arguments.
– The first objection, alleging a failure to state reasons
76 In that regard, it must be noted that, according to settled case-law, the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the matters justifying the measure adopted so that he can if necessary defend his rights and verify whether or not the decision is well founded and to enable the EU judicature to review effectively the Commission’s use of its discretion to define priorities (judgments of 29 June 1993, Asia Motor France and Others v Commission, T‑7/92, EU:T:1993:52, paragraph 30; of 28 September 1995, Sytraval and Brink’s France v Commission, T‑95/94, EU:T:1995:172, paragraph 63; and of 15 December 2010, CEAHR v Commission, T‑427/08, EU:T:2010:517, paragraph 28).
77 In addition, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned in support of their request. It is sufficient if it sets out the facts and legal considerations having decisive importance in the context of the decision (judgment of 29 June 1993, Asia Motor France and Others v Commission, T‑7/92, EU:T:1993:52, paragraph 31).
78 In the present case, it is to be noted that the Commission indicated in paragraphs 37 to 43 of the contested decision the essential matters of law or of fact on which it had based its conclusions concerning the relevant market. In particular, the Commission took into account, inter alia, the following: (i) the probable existence of a degree of substitutability between, firstly, the World Cup and Euro collectibles and, secondly, other football-themed collectibles and other collectibles, (ii) its decision 2006/895/EC, of 26 May 2004, relating to a proceeding under Article [101 TFEU] against The Topps Company Inc, Topps Europe Limited, Topps International Limited, Topps UK Limited and Topps Italia SRL (Case COMP/C‑3/37.980 — Souris-Topps) (OJ 2006 L 353, p. 5), (iii) the price data provided by the applicant and Panini and (iv) the absence of an obligation to carry out a ‘Small but Significant Non-transitory Increase in Prices (SSNIP)’ test which consists in a mental exercise presupposing a small (5 to 10%) but permanent variation in the relative prices of a given product compared with those of readily accessible substitutes, designed to evaluate the probable reactions of customers in the light of such a price change. In so doing, the Commission also responded to the main arguments put forward by the applicant. The first objection must, therefore, be rejected as unfounded.
– The second objection, alleging a manifest error of assessment
79 In support of its line of argument, the applicant submits that the Commission should have carried out an SSNIP test based on the information provided by the applicant and that the Commission incorrectly assessed the evidence concerning prices. In particular, the contemporaneous evidence proves that Panini was able not only to set the price of its World Cup and Euro collections at a level 20% to 50% higher than the price of the vast majority of its other collections, but also to increase significantly the price of the World Cup and Euro collections and still increase its profits. The World Cup and Euro collections are not, therefore, substitutable with other collections. The Commission’s reasons for not taking that economic data into account were incorrect.
80 In that regard, it is to be noted that the Commission has a certain discretion concerning the definition of the relevant market, in so far as that definition involves complex economic assessments (see judgment of 15 December 2010, CEAHR v Commission, T‑427/08, EU:T:2010:517, paragraph 66 and the case-law cited).
81 The concept of the relevant market in fact implies that there can be effective competition between the products or services which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products or services forming part of the same market in so far as a specific use of such products or services is concerned. The interchangeability or substitutability is not assessed solely in relation to the objective characteristics of the products and services at issue, but the competitive conditions and the structure of supply and demand on the market must also be taken into consideration (see judgment of 15 December 2010, CEAHR v Commission, T‑427/08, EU:T:2010:517, paragraph 67 and the case-law cited).
82 In the present case, as regards, first of all, the applicant’s argument that the Commission ought to have carried out an SSNIP test, it must be found that although that type of economic test is indeed a recognised method for defining the market at issue, it is not the only method available to the Commission. It may also take into account other tools for the purposes of defining the relevant market, such as market studies or an assessment of consumers’ and other competitors’ points of view. The SSNIP test may also prove unsuitable in certain cases, for example in the presence of the ‘cellophane fallacy’, that is, the situation where the undertaking concerned already holds a virtual monopoly and the market prices are already at a supra-competitive level, or where there are free goods or goods the cost of which is not borne by those determining the demand. It is also apparent from point 25 of the Commission notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5) that the definition of the relevant market does not require the Commission to follow a rigid hierarchy of different sources of information or types of evidence. The Commission did not, therefore, commit a manifest error of assessment in basing its conclusions on the relevant market on its assessment of the evidence gathered without having recourse to an SSNIP test.
83 In the second place, as regards the applicant’s argument that the Commission incorrectly assessed the temporal aspect of the relevant market, it is apparent from the information provided by the applicant itself that there is some time overlap between, firstly, the release schedules for the World Cup and Euro collections and, secondly, those for the national football collections and other collections. The fact that, as regards the national football collections, the time overlap of one or more months does not cover the entire period during which the World Cup and Euro collections are on sale does not mean that the existence of the overlapping observed, during which the different collections are in direct competition, is irrelevant. The applicant’s argument has, therefore, no basis in fact.
84 In the third place, the argument that the Commission failed to take into account or incorrectly assessed the evidence relating to prices provided by the applicant cannot be accepted.
85 First, it must be found that, contrary to the applicant’s claims, that evidence was indeed taken into account by the Commission, as shown by paragraph 42 of the contested decision which is devoted to it.
86 Secondly, the applicant provided the Commission with four tables listing the start dates for marketing and the recommended sales prices of a series of collections in Germany for the period 2007-2010, in France for the periods 2003-2004 and 2007-2010, in Italy for the period 2008-2010 and in the United Kingdom for the year 2010 and also copies of historical pages from Panini’s internet site relating to some of its collections at the time they were marketed. The substantive accuracy of the information in those documents has not been called into question.
87 However, it must be found that the probative value of that information is significantly reduced by the short period of time examined and the selective nature of the information. In particular, an analysis of the tables in question shows that at least several sports-themed annual collections are not included in them or are not set out for the whole of the period examined.
88 In addition, although the information provided by the applicant seems to indicate the existence of certain price differences between collections sold the same year, it is also apparent from that information that, at least in certain Member States, the recommended sale price of the World Cup and Euro collections was equivalent to that of other football collections sold the same year. Such a finding disproves the applicant’s argument that there was a product market strictly confined to World Cup and Euro collections only.
89 Although the applicant argues against the Commission’s criticisms of the price information it provided, made in paragraph 42 of the contested decision, in particular in terms of the representative nature of the collections chosen and the lack of clarity concerning the period during which the collections in question were marketed, those arguments cannot cast doubt on the fact that the information in question is selective in nature, nor on the finding set out in paragraph 88 above. The Commission was, therefore, entitled to conclude, in paragraph 42 of the contested decision, that the information in question did not substantiate sufficiently the definition of the relevant market advocated by the applicant.
90 Thirdly, it must also be found that, at least in some Member States, the prices of the World Cup and Euro collections changed over time in a manner similar to that of other collections, including the Italian-football-related Panini collection or the applicant’s FA Premier League collection. An analysis of the change in prices of the World Cup and Euro collections alone is also of limited relevance given that those products are placed on the market only once every four years. In addition, other factors such as the fluctuation in exchange rates could account for the fluctuation in prices in the countries outside the Eurozone. Furthermore, the increase in the number of stickers or trading cards in order to complete the collection may be ascribable to the increase in the number of teams and players.
91 Lastly, it is to be noted that the fact that a number of consumers do not alter their demand despite an increase in the price of the products in question is not in itself determinative. The question to be asked is whether the number of consumers switching to a substitute following the increase in the prices of the products in question is sufficiently significant in order to have a negative effect on the profitability of that price increase, there being no need for all the consumers to alter their demand. In the present case, it is not even necessary to adjudicate on the possibility of applying the SSNIP test to children and it is sufficient, therefore, if a significant number of children decide to switch from their World Cup or Euro collection to another collection following a small but permanent increase of the relative prices of the collections in question, in order for all those collections to form part of the same product market, even if some children will never consider the different collections as substitutable.
92 Fourthly, as regards the applicant’s argument that the Commission attributed too much importance to Decision 2006/895, it must, first of all, be found that that decision is not the decisive factor on which the Commission relied in support of its conclusions on the relevant market. It is nonetheless interesting to note that the arguments the applicant has developed in the present case are diametrically opposed to those developed by Topps at the time.
93 Although the Commission is not bound by the assessments of the relevant markets carried out in its earlier decisions (see, to that effect, judgment of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 120), this does not, however, mean that such past assessments may not be taken into account by the Commission during its analysis as a relevant factor among others if, as in the present case, there is nothing to indicate that the conditions of competition on the relevant market have substantially changed compared with the earlier decisions.
94 As regards the applicant’s reference to Commission Decision 2000/12/EC of 20 July 1999 relating to a proceeding under Article [102 TFEU] and Article 54 of the EEA Agreement (Case IV/36.888 — 1998 Football World Cup) (OJ 2000 L 5, p. 55), it is sufficient to note that the circumstances applicable to the sale of tickets to attend a major event such as the World Cup are very different from those applicable to the sale of derived products such as collectibles or other official products associated with the World Cup, but which do not allow the event to be experienced.
95 In the light of all of the foregoing, the Court holds that the applicant has not proved that the Commission committed a manifest error of assessment in concluding that it was likely that the relevant markets were not confined solely to World Cup and Euro collectibles, nor to the IP rights indispensable in order to produce such collectibles.
The second part of the second plea in law, alleging manifest errors of assessment as regards the alleged infringements of Article 101 TFEU on the upstream markets
96 By the second part of the second plea in law, the applicant submits, in essence, that the Commission committed manifest errors of assessment when examining the licensing agreements concluded by the targeted parties. In particular, the Commission failed to consider attentively all the facts before it and misinterpreted the complaint when it examined whether the exclusive licensing agreements concluded with Panini infringed Article 101 TFEU because of their duration or scope.
97 The Commission contends that the applicant did not provide any evidence of any manifest errors of assessment or of a lack of diligence in the examination of the complaint.
98 The principles in the light of which the second part of the second plea in law must be examined have been set out in paragraphs 61 to 66 above. The applicant puts forward a number of arguments in support of the second part of its second plea in law.
99 First, the applicant submits that the Commission failed to provide evidence to support its finding, set out in paragraph 23 of the contested decision, that the IP rights licensing agreements for the marketing of collectibles ‘typically [covered] only one tournament, with some exceptions’.
100 In that regard, it must be noted that at least two of the targeted parties, namely UEFA and the FFF, confirm in their observations that their licensing agreements typically extended only to four years and covered only a single Euro and, as the case may be, only a single World Cup.
101 The applicant’s argument must, therefore, be rejected. The Commission’s finding of fact as to the duration, as a general rule, of the licensing agreements, as formulated in the provisional assessment and the contested decision, is not vitiated by a manifest error of assessment (see also paragraphs 37 to 45 above).
102 Secondly, the applicant submits that the Commission misinterpreted its complaint, which did not so much focus on the duration of the licensing agreements as such, but on the cumulative effect of all the exclusive agreements taken together.
103 In that regard, without having to determine whether the complaint may be interpreted as the applicant claims, it must be found that the Commission did not confine itself to examining the duration of the licensing agreements independently of their cumulative effects. Accordingly, the Commission concluded, in paragraphs 23 and 25 of the contested decision, not only that the duration of the agreements did not prima facie appear to be unreasonably long, but that it did not seem to lead to the foreclosure of Panini’s competitors in an anticompetitive manner either.
104 That conclusion is not vitiated by a manifest error of assessment in so far as it may, inter alia, be based on the following evidence: the presence of numerous competitors of Panini and the applicant on the relevant market which is probably not limited solely to World Cup and Euro collectibles for the reasons set out in paragraphs 79 to 95 above; the participation of Panini’s competitors, including the applicant, in calls for tenders organised by targeted parties for the IP rights for the World Cup and the Euro (in particular those organised by UEFA and the DFB); Topps’ acquisition of the IP rights for the World Cup and Euro from the English football association and Topps’ acquisition of other IP rights from some of the targeted parties (in particular the rights relating to the Bundesliga (German football championship), the rights relating to the Italian Serie A (First Division) players or, recently for the sake of completeness, the rights relating to the Champions’ League and the Europa League organised by UEFA). Those facts disprove the applicant’s argument that the market is foreclosed. On the contrary, the Court finds that the Commission had a sufficiently solid basis in fact to consider that the relevant market operated in a competitive manner, that is, certain calls for tenders relating to the IP rights for the production of collectibles were won by the applicant while others were won by other competitors.
105 In addition, it is apparent from paragraph 35 of the contested decision, and from the structure of that decision, that the Commission’s conclusion as to the limited likelihood of establishing an infringement of Article 101 TFEU is based on the examination of the duration of those agreements, their scope, the organisation of the calls for tenders and Panini’s practices on the downstream market, taken together, not on the examination of one of those factors considered in isolation.
106 Consequently, the applicant’s argument must be rejected.
107 Thirdly, the applicant submits that the Commission has failed to provide evidence for its assertion that there could be legitimate business reasons for FIFA to conclude licences of more than four years’ duration.
108 In that regard, contrary to the applicant’s apparent claims, it must be found that the Commission did not conclude that there were legitimate business reasons, but simply stated, in paragraph 23 of the contested decision, that it could not be excluded that there may be such reasons.
109 The applicant does not deny that, generally, an exclusive licensing agreement does not infringe Article 101 TFEU.
110 In addition, the Commission’s discretion to determine the degree of priority to be given to the different complaints brought before it and to assess the EU interest in continuing to investigate a case must be borne in mind (see paragraphs 62 and 64 above).
111 The Commission did not, therefore, commit a manifest error of assessment in finding that the duration of the exclusive licensing agreement concluded by FIFA could potentially be justified in the light of its context, in particular the fact that the duration in years was only of limited relevance for an agreement for short events which took place only once every four years, without examining whether that was indeed the case in the light of the resources required to carry out such an examination.
112 Fourthly, the applicant submits that it has never asked for the centralised model for the sales of televised broadcasting rights to be applied to the IP rights for the production of collectibles.
113 That argument is manifestly unfounded. Accordingly, in Section III.2 of the complaint, entitled ‘Requested intervention by the Commission’, the applicant states that ‘[t]he simplest solution to this problem is to ensure that tournament organisers … provide a single point of sale for all the necessary rights for Football Collectibles in [a similar] way as they currently do for broadcasting and other commercial opportunities’.
114 As to the remainder, the Commission did not commit a manifest error of assessment in emphasising, in paragraph 24 of the contested decision, that there were important differences between the market for the sale of broadcasting rights and the market for the grant of IP rights for collectibles. The Court considers that those differences, in particular in terms of market functioning, entry barriers and the value of rights, are such that the Commission’s decisional practice in the area of broadcasting rights simply does not apply to the present case. It must indeed be noted that the distinction between broadcasting rights and other commercial rights had already been emphasised in paragraph 86 of Commission Decision 2003/778/EC of 23 July 2003 relating to a proceeding pursuant to Article [101 TFEU] and Article 53 of the EEA Agreement (COMP/C.2-37.398 — Joint selling of the commercial rights of the UEFA Champions League) (OJ 2003 L 291, p. 25).
115 Having regard to the foregoing, the second part of the second plea in law must be rejected as unfounded.
The third part of the second plea in law, alleging manifest errors of assessment as regards the alleged infringements of Article 101 TFEU on the downstream markets
116 By the third part of the second plea in law, the applicant submits that the Commission committed a manifest error of assessment in concluding, first, that Panini had not imposed exclusive purchasing obligations on its distributors and retailers notwithstanding contemporaneous and concordant evidence to the contrary, and, secondly, that there was a limited likelihood of establishing an infringement of competition law on the downstream market.
117 Before examining the applicant’s arguments, it must, first of all, be noted that a first letter on Panini’s headed notepaper dated 27 January 2010 and unsigned, was sent to the Cypriot retailers concerning the distribution of collectibles for the 2010 World Cup (‘the first letter’). That letter explained that only Panini held an official licence from FIFA for the 2010 World Cup, that Pathin Imports and Exports had been appointed as the sole exclusive distributor for World Cup collectibles and that Pathin Imports and Exports wished to develop the distribution network through ‘selected distributors’. The letter also stated that the ‘distributors’ ‘involved in the distribution and/or promotion of non-official products related to the … 2010 FIFA World Cup South Africa … will be automatically excluded from [Panini’s] chain of distribution’.
118 That first letter was followed by a second letter, on 9 February 2010, also on Panini’s headed notepaper, but this time signed by a licensing manager at Panini (‘the second letter’). The second letter reiterated the exclusivity enjoyed by Panini and its importer Pathin Imports and Exports in Cyprus and the wish to develop the distribution network. The letter then stated that ‘distributors’ ‘involved in the distribution of non-official products related to the …2010 FIFA World Cup South Africa … will not be considered’.
119 In reply to a request for information from the Commission, Panini stated that the first letter was merely a draft, which the importer erroneously circulated to the points of sale. According to Panini, that letter was aimed at assisting Pathin Imports and Exports to combat piracy, as explained by the email accompanying the first letter. Panini also stated that it did not impose any exclusivity obligation on the economic operators in the distribution chain downstream of its national distributors. In reply to requests for information from the Commission, Pathin Imports and Exports and other Panini importers, situated in other Member States, confirmed that they did not impose an exclusivity clause on their partners downstream of the distribution chain.
120 The applicant’s arguments in support of the third part of its second plea in law must be examined in the light of those findings of fact. In particular, the applicant submits that the first and second letters prove that an exclusivity obligation was imposed on the retailers, contrary to Panini’s denials. It also submits that that exclusivity obligation is not limited to Cyprus, but extends to Panini’s entire distribution network in the European Union. Lastly, the applicant submits that the Commission committed a manifest error of assessment in concluding that Article 101 TFEU had not been infringed, without stating any reasons whatsoever in support of that conclusion or conducting any examination under Article 101(3) TFEU.
121 In that regard, it must first be borne in mind that the examination of whether an exclusivity obligation imposed by a supplier on its distribution network is lawful must take into account the relevant legal and economic context as a whole.
122 In this instance, in the first place, the applicant’s argument that Panini’s practices, if proven, infringe Article 101 TFEU, is based entirely on the misconceived premiss that the relevant markets are confined solely to the World Cup and Euro collectibles. It must, however, be recalled that for the reasons set out in paragraphs 79 to 95 above, the applicant has not proven that the Commission committed a manifest error of assessment in finding that the relevant markets had to be defined more widely. The Commission’s conclusions on the alleged exclusivity obligation imposed by Panini must be interpreted in the light of the Commission’s assessment of the legal and economic context as a whole, including the definition of the relevant markets.
123 In the second place, it must be found that even if the first and second letters were understood as imposing an exclusivity obligation on the economic operators of the distribution chain downstream of the national distributor, that is, the retailers and points of sale, such exclusivity would be confined solely to collectibles ‘relating to the World Cup’. There is nothing to indicate — and the applicant concedes moreover that it has never argued as much — that such an exclusivity obligation would extend to other football-related collections or, a fortiori, collections on other themes.
124 In the third place, it must be found that there is nothing to support the applicant’s argument that Panini imposes an exclusivity obligation on the retailers of its distribution network not only in Cyprus, but also in the European Union as a whole. First, it is apparent from Panini’s email mentioned in paragraph 119 above that the letters were intended for ‘points of sale in Cyprus’. Secondly, as the Commission correctly found in the contested decision, both Panini and the importers to which the Commission sent a request for information confirm that no exclusivity clause was imposed downstream of the distribution chain.
125 In the light of the foregoing, the Commission did not commit a manifest error of assessment and provided a sufficient statement of reasons in concluding, for the reasons set out in paragraphs 33 and 34 of the contested decision, that there was no generalised exclusivity obligation imposed by Panini downstream of the distribution chain and no foreclosure of Panini’s competitors on the downstream market. Consequently, the Commission did not commit a manifest error of assessment in concluding that there was a limited likelihood of establishing an infringement of Article 101 TFEU.
The fifth part of the second plea in law, alleging manifest errors as regards the alleged infringements of Article 102 TFEU
126 By the fifth part of the second plea in law, the applicant submits, in essence, that the Commission committed a manifest error of assessment in considering it unlikely that Panini, on the one hand, and the targeted parties, on the other, hold a dominant position. The Commission also committed a manifest error of assessment in concluding that it was unlikely that the targeted parties had infringed Article 102 TFEU.
127 The Commission disputes those arguments.
– The first complaint, relating to Panini’s alleged dominant position
128 The applicant submits, in essence, that the Commission committed a manifest error of assessment in considering it unlikely that Panini holds a dominant position on the downstream market. In particular, the Commission failed to consider correctly whether Panini held a dominant position in the light of its ability to maintain its de facto monopoly and increase its prices, and in the light of the investment bank presentations.
129 The Commission contends that it conducted its investigation with all due diligence. Moreover, the Commission notes that it considered that both the relevant downstream and the relevant upstream markets were broader than the applicant claims.
130 In that regard, first, it must be found that the applicant’s arguments are based on the premiss that the relevant market is confined solely to the World Cup and Euro collectibles. However, for the reasons set out in paragraphs 79 to 95 above, the applicant has not proved that the Commission had committed a manifest error of assessment in finding that it was unlikely that the relevant market may be defined so restrictively.
131 Secondly, it must be found that the downstream market defined as probably not confined solely to World Cup and Euro collectibles is characterised by the presence of numerous competitors. It is also to be noted that Topps acquired certain rights previously allocated to Panini, such as those relating to the German football championship or, for the sake of completeness, those relating to the Champions’ League and the Europa League organised by UEFA, which shows that there is lively competition.
132 Thirdly, Panini produced actual examples of cannibalisation between the football-related collections and the collections on other themes, which shows that there is lively competition on the downstream market. Accordingly, the sales of the collection relating to the Italian national football competition fell in 2006 and 2007 following the enthusiasm for the collections relating to the Dragon Ball universe based on the eponymous manga. Sales subsequently recovered after the Dragon Ball universe collections ceased to be marketed. The circumstances the applicant raised for the first time at the hearing, according to which Italian football was allegedly hit by a scandal during that period, are not sufficient to call that finding into question.
133 In the light of the foregoing, the Court holds that the Commission did not commit a manifest error of assessment in concluding that it was unlikely that Panini has a dominant position on the downstream market.
– The second objection, relating to the targeted parties’ alleged dominant position on the upstream market
134 The applicant submits, in essence, that the Commission committed a manifest error of assessment in considering that it was unlikely that the targeted parties hold a dominant position on the upstream market. In particular, the Commission committed a manifest error of assessment in concluding that the IP rights held by FIFA, UEFA and the national associations were not indispensable in order to create collectibles relating to international tournaments.
135 The Commission contends that it conducted its investigation with all due diligence. Moreover, it notes that it considered that both the relevant downstream and upstream markets were broader than the applicant claims.
136 In that regard, first, the applicant’s argument that it is necessary to hold the rights from the organisers of the international tournaments, such as the World Cup and the Euro, the rights for all the participating teams and the rights for all the players in order to market a collection relating to those tournaments must be rejected. It is sufficient to note that Panini was able to put on the market a World Cup collection while it did not hold the rights relating to the English national team, held by the applicant. Conversely, the applicant marketed an official World Cup collection of the English national team, without holding the rights granted by FIFA, which Panini held.
137 Secondly, it must be found that the applicant’s arguments relating to the allegedly indispensable nature of the rights held by FIFA, UEFA and the national federations are based entirely on the premiss that the downstream market is confined solely to the World Cup and Euro collectibles. However, for the reasons set out in paragraphs 79 to 95 above, the Commission did not commit a manifest error of assessment in finding that the relevant market could not be defined so restrictively and, consequently, the rights at issue are in no way indispensable in order to be active on the correctly defined downstream market.
138 Thirdly, the applicant’s arguments relating to the application of the decisional practice in the area of television broadcasting rights must be rejected. As the Commission correctly stated in paragraph 24 of the contested decision, there are important differences between the market for the sale of broadcasting rights and the market for the grant of IP rights for collectibles which mean that in the present case the decisional practice in the area of broadcasting rights does not apply.
139 In the light of the foregoing, the Court holds that the Commission did not commit a manifest error of assessment in concluding that it was unlikely that the targeted parties hold a dominant position on the upstream market.
– The third objection, relating to the alleged abuse
140 The applicant submits that the Commission committed a manifest error of assessment in concluding that it was unlikely that the targeted parties had infringed Article 102 TFEU. Accordingly, the Commission committed manifest errors of assessment in concluding that some national football associations, including the FFF and the AIC, had negotiated with the applicant, despite the evidence to the contrary and of the applicant’s being foreclosed following the targeted parties’ refusal to grant it the IP rights to market World Cup and Euro collectibles. The prices imposed by Panini are also excessive and have an exploitative effect. Lastly, the Commission’s conclusion that trading cards incorporating 3D images or videos do not constitute new products which have been prevented from entering the market by the practices in question is incorrect.
141 The Commission disputes those arguments.
142 In the first place, as regards the applicant’s arguments relating to the alleged refusal to grant it the IP rights to market World Cup and Euro collectibles and the existence of foreclosure effects, it must, first, be found that the applicant was indeed invited to participate in the calls for tenders organised by the some of the targeted parties such as UEFA and the DFB.
143 Secondly, contrary to the applicant’s claims, merely sending a standard letter to some of the targeted parties, without any follow-up for several months, cannot reasonably be considered a serious effort to begin commercial negotiations in order to obtain the rights in question. Consequently, the targeted parties’ failure to reply cannot amount to a refusal to grant a licence which amounts to an abuse.
144 Thirdly, it is to be noted that, according to settled case-law, in order for the refusal by an undertaking, which owns an intellectual property right, to give access to a product or service indispensable for carrying on a particular business to be treated as abusive, it is necessary for three cumulative conditions to be satisfied, namely, that that refusal is preventing the emergence of a new product for which there is a potential consumer demand, that it is unjustified and is such as to exclude any competition on a secondary market (see, to that effect, judgment of 29 April 2004, IMS Health, C‑418/01, EU:C:2004:257, paragraph 38).
145 In the present case, it must be found that the Commission did not commit a manifest error of assessment in concluding that the innovations mentioned by the applicant, such as the production of video trading cards or cards with pieces of match worn shirts, did not constitute new products, but only new features of existing products. The Commission’s assessment that the purpose of the products remains the same must be endorsed, since it is free from manifest error.
146 The applicant has also failed to demonstrate how the granting of IP rights to Panini prevented the development of those alleged new products. In particular, it is to be noted that the FFF stated that the rights granted to Panini were very limited in scope, so that the applicant could potentially have obtained the necessary rights in order to produce some of the new products mentioned by it.
147 Fourthly, it is to be noted that numerous competitors are active on the downstream market as correctly defined, so that the Commission did not commit any manifest error of assessment in concluding that it was unlikely that there would be any foreclosure effect.
148 In the light of the foregoing, the applicant’s arguments that the refusal to grant it the IP rights to market World Cup and Euro collectibles constitutes an abuse must be rejected.
149 In the second place, as regards Panini’s allegedly excessive prices, it must be borne in mind that, according to the case-law, a price is abusive if the difference between the costs actually incurred and the price actually charged is excessive, and, if that is the case, it must be determined whether a price has been imposed which is either unfair in itself or when compared to competing products (judgment of 14 February 1978, United Brands and United Brands Continentaal v Commission, 27/76, EU:C:1978:22, paragraph 252).
150 In the present case, as set out in paragraph 88 above, it must be found that the data available does not confirm that the price of the World Cup and Euro collectibles is higher than that of other football collections. In addition, the applicant has adduced no evidence which shows that the sale price of the Panini collections is excessive in absolute terms or compared with their costs of production.
151 Consequently, the applicant’s argument based on Panini’s allegedly excessive prices must be rejected. Following the examination of all the arguments put forward by the argument in support of the fifth part of its second plea in law, that part of the plea must be rejected in its entirety.
152 In the light of all of the foregoing, the Court holds that the applicant has not proven that the Commission committed a manifest error of assessment in rejecting the applicant’s complaint for lack of EU interest. The applicant may not require the Commission formally to initiate the proceedings within the meaning of Article 11(6) of Regulation No 1/2003 in order to investigate the alleged infringements of competition law, nor to adopt a final decision on whether or not such alleged infringements exist in order to justify rejecting the complaint. Following the examination of the five parts of the second plea in law, that plea must be rejected in its entirety as unfounded.
153 Since the first and second pleas in law have both been rejected, the action must be dismissed in its entirety.
Costs
154 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the Commission and by the interveners, in accordance with the forms of order sought by them.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Topps Europe Ltd to bear its own costs and to pay those incurred by the European Commission, Fédération internationale de football association (FIFA) and Panini Spa.
Papasavvas | Bieliūnas | Forrester |
Delivered in open court in Luxembourg on 11 January 2017.
E. Coulon | S. Papasavvas |
Registrar | President |
* Language of the case: English.
© European Union
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