1.   INTRODUCTION

1.

The draft decision concerns a single and continuous infringement of Article 101 TFEU (2) and Article 53 EEA Agreement (3) committed by Pierre Cardin Evolution (‘Cardin Evolution’), Société de Gestion Pierre Cardin (‘Cardin SAS’, together with Cardin Evolution ‘Cardin’) and Westfälisches Textilwerk Adolf Ahlers Stiftung & Co. Kg (‘WTW Ahlers’) (all together, the ‘Parties’).

2.

The infringement, as established in the draft decision, concerns the implementation and enforcement within the European Economic Area (‘EEA’) of a series of agreements and/or concerted practices to restrict (i) out-of-territory passive sales of certain Pierre Cardin-licensed products by Cardin licensees; (ii) out-of-territory passive sales of such products by customers of Cardin licensees; and (iii) the customers to which Cardin licensees and their customers could sell such products.

3.

The draft decision establishes that the conduct focused on protecting WTW Ahlers, […] and […] (all together ‘Ahlers’) from competition in the territories for which Cardin had granted it an exclusive licence.

2.   INVESTIGATION PHASE

4.

On 25 March 2019, the Commission received a complaint from Malu NV (the ‘Complainant’ ) against Mr Pierre Cardin, Cardin SAS, and WTW Ahlers, in accordance with Article 7(2) of Council Regulation (EC) No 1/2003 (4) and Article 5(1) of Commission Regulation (EC) No 773/2004 (5).

5.

On 31 January 2022, the Commission initiated proceedings in the present case within the meaning of Article 2(1) of Regulation (EC) No 773/2004 and Article 11(6) of Regulation No 1/2003.

6.

Between September 2019 and June 2023, the Commission sent various requests for information ( ‘RFIs’ ) to Cardin and Ahlers.The Commission also sent RFIs to market participants, such as the Complainant, other licensees and those licensees’ customers. Between 22 and 25 June 2021, the Commission carried out unannounced inspections at the premises of WTW Ahlers, […] in Germany.

3.   WRITTEN PROCEDURE

3.1.   Statement of Objections

7.

On 31 July 2023, the Commission adopted a statement of objections (‘SO’) addressed to Cardin Evolution, Cardin SAS, WTW Ahlers, […] and […] (all together, the ‘SO Addressees’), which was notified to them on 1 August 2023.

3.2.   Access to the file

8.

The SO Addressees were granted access to the file on 8 and 11 August 2023 respectively. The SO Addressees were granted access to the file by means of a USB stick. I did not receive any complaint or requests from the SO Addressees regarding access to the file.

3.3.   Written replies to the SO

9.

DG Competition originally granted the SO Addressees a period of eight weeks following receipt of access to the file to submit their replies to the SO (‘SO Replies’ or ‘SO Reply’). The original deadline was therefore set on 4 October 2023 for Ahlers and on 9 October for Cardin.

10.

On 5 September 2023, Ahlers requested an extension to submit its SO Reply. On 6 September 2023, DG Competition granted Ahlers an extension until 1 November 2023.

11.

Similarly, on 6 September 2023, Cardin requested an extension to submit its SO Reply. On 8 September 2023, DG Competition granted Cardin an extension until 30 October 2023.

12.

On 30 October 2023, the Commission was informed that […]. […].

13.

Cardin submitted their SO Reply on 30 October 2023; WTW Ahlers, […] and […] ([…] the ‘WTW entities’) submitted their SO Reply on 1 November 2023. In their SO Replies, Cardin and the WTW entities requested to be heard orally pursuant to Article 12(1) of Regulation No 773/2004. Neither undertaking raised any procedural arguments in their SO Replies.

14.

[…].

3.4.   Formal Complainant

15.

On 9 October 2023, DG Competition provided the Complainant with a non-confidential version of the SO and set an initial deadline of 24 October 2023 for it to comment. After receiving a request from the Complainant, this was later extended by DG Competition to 7 November 2023.

16.

On 2 November 2023, the Complainant submitted its comments on the SO pursuant to Article 6(1) of Regulation No 773/2004 and requested the opportunity to develop its arguments at the oral hearing, if the SO Addressees requested one.

4.   ORAL HEARING

17.

On 13 October 2023, I informed the SO Addressees that I had provisionally decided that the oral hearing would take place on 24 January 2024. However, on 15 November 2023, the WTW entities asked for the oral hearing to take place in February 2024.

18.

On 13 December 2023, following consultations with DG Competition and the SO Addressees, I informed all concerned that the oral hearing in this case would take place on 2 February 2024. Cardin and the WTW entities had already requested to make their oral submissions in French and German respectively, which I accepted.

19.

On 18 December 2023, I sent formal invitations to the SO Addressees and the Complainant for the oral hearing.

20.

[…].

21.

On 25 January 2024, following consultations with DG Competition, Cardin and the WTW entities, I communicated a final version of the agenda to the participants of the oral hearing.

22.

The oral hearing took place on 2 February 2024. Delegates representing Cardin, the WTW entities, the Complainant, the Commission and the competent authorities of one Member State and the EFTA Surveillance Authority were present in the room. Additional representatives from the Complainant, the competent authorities of eleven Member States and the Commission participated remotely.

23.

The hearing proceeded smoothly and there were no procedural complaints.

5.   FURTHER STEPS FOLLOWING THE ORAL HEARING

5.1.   Letter clarifying the fining methodology

24.

On 8 May 2024, the Commission sent two letters to provide respectively Cardin and the WTW entities wiSth further clarifications on the fining methodology that the Commission intended to apply, in the event of an adoption of a decision in the present case pursuant to Article 7 of Regulation (EC) No 1/2003 and of an imposition of fines pursuant to Article 23(2) of Regulation (EC) No 1/2003. […]. DG Competition gave them a deadline until 22 May 2024 to provide their comments on the respective letters.

25.

On 22 May 2024, the WTW entities submitted comments on the letter. On 23 July 2024, they submitted a supplementary submission to their comments of 22 May 2024. Cardin and […] did not provide any comments.

5.2.   Inability to pay application

26.

On 18 March 2024, […] submitted a request for a reduction of the fine for inability to pay (‘ITP’) under point 35 of the Guidelines on Fines.

27.

On 30 July 2024, DG Competition’s ITP team proposed to partially accept the […] ITP request and grant payment conditions.

6.   THE DRAFT DECISION

28.

The draft decision concludes that Cardin and WTW Ahlers have infringed Article 101(1) TFEU and Article 53 EEA Agreement by participating in a single and continuous infringement covering the whole of the EEA, which consisted in agreements and/or concerted practices that had the object of restricting out-of-territory passive sales by Cardin licensees and their customers as well as the customers to whom Cardin licensees and their customers could sell Pierre Cardin-licensed products within the EEA.

29.

The draft decision concludes that the infringement lasted from 1 January 2008 until 31 March 2021.

7.   CONCLUSION

30.

Pursuant to Article 16(1) of Decision 2011/695/EC, the Final Report shall consider whether the draft decision deals only with objections in respect of which the Parties have been afforded the opportunity of making known their views.

31.

Upon review of the draft decision, I conclude that it does so.

32.

I have not received any request or complaint with respect to the procedure in this case.

33.

In view of the above, I consider that the rights of defence of the Parties in this case have been respected.

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

(2)  Treaty on the functioning of the European Union (OJ C 326, 26.10.2012, p. 47) (‘ TFEU ’).

(3)  Agreement on the European Economic Area (OJ L 1, 3.1.1994, p. 3) (‘ EEA Agreement ’).

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

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