This Decision is addressed to:
- Nintendo Corporation Ltd 60, Kamitakamatsu-cho
Higashiyama-Ku
Kyoto 605, Japan
- Nintendo of Europe GmbH Nintendo Center D -; 63760 Großostheim
- John Menzies plc 108 Princes Street Edinburgh EH2 3AA, United Kingdom
- Concentra - Produtos para Crianças, SA Rua Prof. Henrique Barros, 9 P - 2685-339 Prior Velho
- Linea GIG SpA Via Volturno, 3/12 I - 50019 Osmannoro Sesto Fiorentino, Firenze
- Nortec AE 8, Alexandroupoleos str. GR - 44 51 Metamorfosi, Athens
- Bergsala AB Marios Gata 21 S - 434 37 Kungsbacka
- Itochu Corporation 5-1, Kita-Aoyama, 2-chome
Minato-ku,
Tokyo 107-8077, Japan
- CD-Contact Data GmbH Brunnfeld 2-6 D - 93133 Burglengenfeld.
This Decision shall be enforceable pursuant to Article 256 of the Treaty.
Done at Brussels, 30 October 2002.
For the Commission
Mario Monti
Member of the Commission
(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ L 1, 4.1.2003, p. 1.
(3) OJ L 354, 30.12.1998, p. 18.
(4) OJ C 241, 8.10.2003.
(5) See column 1(b) on pages 132 to 136 of the Commission's file.
(6) Page 415.
(7) Page 2667.
(8) Page 2216.
(9) Page 136.
(10) Page 132.
(11) Pages 426, 313 and 279A.
(12) Page 244, letter of Concentra dated 17 September 2002.
(13) Page 200.
(14) See Bergsala's reply to the statement of objections.
(15) Itochu's reply to the statement of objections, paragraph 10. See also Itochu submission of 26 November 2001.
(16) Page 2595, 1622 to 1624.
(17) Pages 138 to 153. CD-Contact GmbH is 100 % owned by Contact Vermögensverwaltung GmbH The latter company and Contact Belgium NV had identical owners and board of directors. Contact Data Belgium was created by CD-Contact Data GmbH on 27 March 1997. (pages 2531 to 2535 and 2618). That Contact Data Belgium BV was a wholly-owned subsidiary of CD-Contact Data GmbH also appears from Contact's submission of 19 November 2001.
(18) Contact's submission of 19 November 2001.
(19) Trade in the second-hand products is ignored. The products (in particular game cartridges) have a very short life cycle, meaning that they quickly lose their appeal to consumers (see recital 76). Indeed, a consumer survey conducted in the United Kingdom showed that very few consumers had bought second-hand games. (Monopoly of Mergers Commission report, page 196 (page 2591)). Consequently, as the volume of second-hand products is low when compared to newly sold products, they make no significant difference to the market share of new Nintendo products sold by the parties. This has not been contested by any of the parties.
(20) See THE's 1997/1998 business plan (page 542). See also Mr Cean, founder of Titus Interactive, a game developing company, in La tribune of 9 April 1998 (p. 4, IV/35.7.706, page 116).
(21) From THE's 1997/1998 business plan (pages 541 and 542). For Nintendo's president, see Nintendo's annual report over 1995 (page 2341).
(22) See THE's 1997/1998 business plan (page 541). See also Financial Times of 2 December 1998 (IV/35.706 pages 115 and 116), where a spokesman of GT Interactive (a game publisher) is quoted.
(23) See THE's 1997/1998 business plan (page 541).
(24) Consumer research conducted by Sega mentioned in the MMC report on page 58, (page 2591).
(25) See Commission Notice on the definition of the relevant market for the purposes of Community competition law (OJ C 372, 9.12.1997, p. 5), point 23.
(26) Further substantiated by THE on page 542 where it states: "The console's position is assured as the choice of gamers".
(27) Page 573.
(28) See for instance Screen Digest, July 1998 page 159 (page 2577).
(29) Nintendo's annual report for 1999.
(30) This does not preclude that the same game is available for different consoles. However, these must then be sold on different media, each compatible with a specific game console and incompatible with any other dedicated game consoles.
(31) Game cartridges designed to work with a game console of a particular generation, can sometimes be played on a different game console of the same make if a suitable adapter is used. An adapter, the "Super Game Boy", allowed Game Boy cartridges to be used on a SNES console (Annual Report Nintendo 1995, page 15) (page 2341). These adapters do not exist between consoles of different brands, or even between most consoles of the same brand.
(32) See Nintendo's reply to the Statement of Objections at points 2.1 to 2.3.
(33) Namely, the sales of game cartridges for the extra game consoles that it would have sold if it had not raised its game console prices.
(34) Annex A to Nintendo's reply to the Statement of Objections, paragraph 5.
(35) Pages 1527 and 1528.
(36) Page 566. See also the Frankfurter Zeitung of 2 February 1999, based on an interview with [...]* NOE, in which the relative success of Sony's Playstation is primarily attributed to the number of games available for this console (page 2590).
(37) [...]* representing text of a confidential nature.
(38) A price-elasticity of demand is a measure for the responsiveness of the demand for a product if its price changes. The smaller the price elasticity of demand, the smaller the changes in consumer demand in response to a price change of the product and vice versa. When it is less than 1, the responsiveness of consumer demand is so small that a supplier that increases its prices will still increase its net revenues because the decline of its revenues as a result of the decrease of unit sales is outweighed by the increase of revenues as a result of the higher prices on its remaining unit sales.
That the price elasticity for consoles is smaller than one can be derived from pages 1527 and 1558. Here NOE estimates the impact of a price increase for the N64 console from [...]* if any. This, still according to NOE, would substantially improve NF's gross margin. If consumers are price-insensitive when purchasing a console, they will be at least equally insensitive to the price of complementary products that may be purchased later.
That the price elasticity of game cartridges is smaller than one can be derived from page 1527. Here it appears that increasing prices for N64 game cartridges will increase NF's gross margin, which is consistent with an inelastic demand for game cartridges.
(39) Nintendo's 1997 annual report, page 2249.
(40) See Nintendo's reply to the statement of objections at points 2.1 to 2.3 as well as annex A.
(41) Nintendo's submissions of 1 September 1998, page 24 (page 2329).
(42) See faxes from Nortec to NOE (page 1559), Bergsala to NOE (page 1574) and Linea to NOE (page 1579 and 1580). From this correspondence it appears that NOE consoles imported from the United Kingdom require at most the addition of a different SCART cable, a different power plug and a simple instruction booklet in the local language. This operation involves insignificant costs in comparison to the value of the console. Similarly, no technical barriers exist for imports into the United Kingdom (page 775).
(43) See Tribunal de Commerce of Brussels, in its judgment of 27 September 1995 in the case Nintendo Belgium - Horelec concerning parallel imported games from the United Kingdom. From this judgment it appears that the technical modifications to adapt consoles destined for the United Kingdom to Belgian TV standards, are both feasible and legal. The judgment, in view of its date, can only have concerned NES and/or SNES consoles (pages 2220 to 2228).
(44) See submission of Nintendo of 5 October 1998 (page 2493).
(45) See pages 1229, 1566 and 1575.
(46) See page 1255.
(47) Page 1010.
(48) According to a survey commissioned by the MMC (see page 216 and 217 of the report (page 2591) of prices in the United Kingdom, Germany and France, the investigated game console bundles and game cartridges were widely available in the retail chain in all investigated countries and generally available from stock. Occasionally, the documents on the file allow a comparison between products available in different countries (see for instance pages 1272, 1306, 1307 and 1327 to 1333). From such comparisons it appears that all consoles and at least most game cartridges are available from the local official distributor as well as parallel traders, indicating that product offers are very similar between different EEA countries.
(49) Pages 1010 and 1229.
(50) See tables 2, 3 and 4 after recitals 73, 74 and 75.
(51) Pages 1120 and 1126. See again faxes from Nortec to NOE (page 1559) Bergsala to NOE (page 1574) and Linea to NOE (pages 1579 and 1580) regarding the limited need and the insignificant cost to adapt products to local market conditions.
(52) For instance, parallel traders were apparently providing the service of adapting the parallel traded products to local sales conditions, such as providing the necessary scart cables and adapted plugs if the parallel trade concerned static consoles.
(53) Omega's complaint arose from court actions of Nintendo against Omega to this effect (page 3). NF threatened all its customers that it would actively prosecute any dealers, which illegally parallel imported the products, meaning from outside the EEA, without the consent of Nintendo. NF acted on explicit instructions from NCL (pages 1221 and 1222). NB also went to court in order to stop Horelec from importing from the USA (page 1303).
(54) See Concentra's reply to the statement of objections paragraphs 20 to 24.
(55) Law 24/96 of 31 July 1996, Decree-law No 238/86 of 19 August 1986 (as amended by Decree-law No 42/88 of 6 February 1988).
(56) See paragraph 25 and footnote 17 of the Statement of Objections, based on facts to be found on pages 1559, 1574, 1579, 1580 and pages 2220 to 2228. Page 1559 relates to the situation in Greece that, in terms of market size and relative location, is comparable with Portugal.
(57) Pages 1427, 1428, 1441 and 1442.
(58) The Commission asked Nintendo to provide figures on the EEA turnover regarding dedicated game consoles for Nintendo itself and Sony and Sega and any other supplier of such products. Nintendo did not provide any turnover figures for other suppliers of dedicated game consoles or even mention one (pages 2250 to 2268). See also CTW, "A modern map of Europe" in Nintendo's submission of 1 September 1998 (page 2289).
(59) Annual report Nintendo for 1997. Nintendo realises over 90 % of its sales and income from operations in the same business segment (see annual report 1997 on page 58) (page 2249). Its overall turnover can therefore be compared with the turnover of the relevant business segments of Sega and Sony.
(60) See extract of Sony's Website as provided in Nintendo's submission of 1 September 1998 (page 2276).
(61) See Agence France Presse 22 May 1998 (page 2334).
(62) According to Durlacher & Co. "A survey of the video and computer games industry", page 36, in 1994, 4 % of console sales worldwide were attributed to companies other than Sega and Nintendo (page 2378).
(63) See pages 1 and 24 of Nintendo's 1995 annual report and page 8 of Nintendo's 1996 annual report (pages 2341 and 2248).
(64) CTW 22 September 1997, "Datamonitor's five year review" in Nintendo's submission of 1 September 1998 p. 3 (page 2253).
(65) Submission of Nintendo of 1 September 1998 p. 16 (page 2266).
(66) Submission of Nintendo of 1 September 1998 p. 4 (page 2254).
(67) "At least" as, if Sony's and Sega's turnover would be measured at wholesale prices and Sega's sales of consoles only would be taken into account, Nintendo's market share would necessarily be higher.
(68) See Itochu's reply to the statement of objections paragraph 19.
(69) Pages 2449 and 2450.
(70) Page 531.
(71) See Itochu's reply to the Statement of Objections paragraph 19.
(72) For instance, Omega and Itochu distributed cartridges of third party developers (page 2 and Itochu's reply to the statement of objections paragraph 20).
(73) Page 2249.
(74) Page 567.
(75) Page 532 as well as 554 where it is stated that [...]* % of the sales are made with [...]* of the titles.
(76) Pages 575 and 576.
(77) The Commission had requested Nintendo to provide figures allowing to do so (page 2249), but Nintendo was also unable to provide such figures (pages 2260 to 2266.).
(78) CTW 9 February 1998, page 8 of Nintendo's submission to the Commission dated 1 September 1998 (page 2258).
(79) The denominator that Charttrack uses to calculate the percentage figure also includes turnover of games compatible with Sega's and Sony's dedicated game consoles, that is not part of the relevant markets.
(80) Page 2590.
(81) These figures are calculated by taking, for the relevant years, the figures for dedicated 16-bit consoles from Table 2 from Nintendo's submission of 1 September 1998 (page 6) and Nintendo's EEA turnover in games for the SNES console from tables 16 and 18 of the same submission (pages 14 and 15) (pages 2256, 2264 and 2265).
(82) IV/35.587 pages 305 and 321. At the time Sony had not yet introduced its own console but acted as a game publisher. Not too much importance should be attached to differences in quarterly market shares. Sales of game cartridges are rather volatile and may vary substantially in the short run, depending on whether in a particular quarter a successful game was released or not (see also recital 76). However, market shares remain fairly stable when a longer term perspective is taken.
(83) Page 881.
(84) CTW, "Record year right on track" in Nintendo's submission of 1 September 1998 (page 2296).
(85) Table 18 of Nintendo's submission of 1 September 1998 (page 2265).
(86) Yet again "at least" as the sales figures of Nintendo are expressed in prices to trade whereas the denominator is expressed in retail prices.
(87) Screen Digest, July 1998 (page 2574A).
(88) IV/35.587 pages 305 and 321.
(89) Case 35.587 Vol. X Page 2737.
(90) Case 35.587 Vol. X, page 2747.
(91) Case 35.587 Vol. XI, page 2908.
(92) Case 35.587 Vol. XI, page 2926.
(93) Case 35.706, pages 1 to 3.
(94) Case 35.706, page 12.
(95) Case 35.706, pages 13 and 14.
(96) Case 35.706, page 20.
(97) Case 35.706, page 37.
(98) Case 35.706, pages 95 to 109.
(99) Pages 1 to 66.
(100) Pages 88 to 90.
(101) Pages 105 to 108.
(102) Pages 116 and 118.
(103) Page 110 to 113.
(104) See recital 14 above.
(105) Pages 10 to 12.
(106) Page 639. The information provided in this letter corresponded to explicit instructions of NOE (page 656).
(107) Page 757.
(108) Pages 758 and 759 and 760 to 764.
(109) Pages 1638 to 1641.
(110) Pages 988, 1236 and 1668.
(111) See Nintendo's submission of 9 August 2001 and its reply to the statement of objections paragraph 4.4.
(112) Page 437.
(113) Pages 446 and 447.
(114) Page 804.
(115) Pages 807 and following.
(116) Pages 956 to 987.
(117) Pages 2679 to 2682 (Itochu), 2683 to 2686 (Concentra), 2690 to 2692 (Bergsala) 2687 to 2692 (Contact), 2700 to 2703 (Linea) and 2725 A-D (Nortec).
(118) See page 426.
(119) Pages 313 and 297A.
(120) NOE was the Nintendo subsidiary responsible for distributing the Products in Germany. Page 1000, point A.4 from which it can be deduced that the HW bundle (Gameboy with one game) was offered to German retailers by parallel traders for [...]*. See also page 1023 where NOE stated: "This means a price difference between UK merchandise and lowest offer from NOE of [...]* %". Some important NOE customers were retailing parallel imported Game Boy Games at less then half the price of those obtained from NOE. The existence of price differentials can also be confirmed by the fact that, according to a letter dated 11 April 1996 from THE to NOE, (pages 975 to 979 and 1135 to 1147) the price differences in 1996 between the United Kingdom and the rest of the EEA had already existed for some time.
(121) Pages 1441 to 1443. The table on these pages was drawn up on the basis of the replies from Nintendo distributors. See also a letter dated 22 May 1995 from NOA to NUK (page 1676).
(122) See letters dated 11 April 1995 (page 1000 to 1008), 19 April 1995 (page 1009 to 1019) and 4 May 1995 (pages 1022 to 1024).
(123) See pages 1000 to 1002.
(124) See pages 1009 to 1012.
(125) See page 1676.
(126) See page 1676.
(127) Page 297A.
(128) Up to 1 January 1998, THE had three successive agreements with Nintendo. One valid from 4 August 1995 until 31 December 1996, one valid from 1 January 1996 until 31 December 1996 and one valid from 1 January 1997 until 31 December 1998.
(129) Clause 3.2. (pages 299 and 454) Nintendo "appoints distributor as its exclusive independent and authorised distributor for the sale of covered products to authorised dealers in the territory" and, clause 2.2 (pages 298b and 453) "authorised dealers shall mean and be limited to those persons which specialise in selling consumer products at retail to consumers and which are competent and possess sales facilities appropriate to the covered products and employ staff trained in the covered products". These provisions read together imply that only sales to retailers are allowed. Clause 4.3. (page 299a and 456) does also imply this: "Distributor shall sell covered products at wholesale to competent retailers possessing sales facilities appropriate to the covered products and employing staff trained in the covered products". See also page 814.
(130) See pages 861 to 863.
(131) See John Menzies's reply to the Statement of Objections, page 8 as well as the policy statement itself (pages 861 to 863).
(132) Page 864, confirmed by John Menzies's reply to the Statement of Objections paragraph 2.2.
(133) See page 864.
(134) Page 869.
(135) See page 881, a letter dated 22 February 1996 from THE to [...]* of NOA.
(136) Letter from NOE to THE, dated 4 April 1996 (page 963) and letter from NOE to NOA dated 1 January 1996 (page 1119).
(137) Pages 1097, 1104 and 1105 and 1124 and 1125.
(138) Pages 1049, 1050 and 1051.
(139) Pages 1387 to 1389.
(140) Pages 1255, 1257 and 1258. From page 1257 it appears that parallel exporters offered products to NF's customers at prices lower than those charged by NF.
(141) Letter dated 22 February 1996, pages 1040, 1042, 1156 and 1157.
(142) Pages 1106 and 1123. Console prices relate to Game Boy products. NOE expressed the price differences in terms of consumer prices. This is an indirect measure for differences in prices to trade. However, also NOE also used these figures to draw conclusions as regards to prices to trade practised by THE (page 1098).
(143) See pages 1104, 1105 and 1124 and 1125.
(144) See page 1050 and 1051. These comparisons are made between the recommended resale prices that NN planned as from April 1996 onwards and the RRP of THE in February 1996. The prices differences that can be calculated if NN's RRP in February 1996 would be used are substantially higher.
(145) See page 1040.
(146) See page 1042.
(147) See page 1157.
(148) See page 1425.
(149) See page 1097, a letter from NOE to NOA dated 1 April 1996.
(150) In Greece, wholesale prices were indeed substantially higher than in the United Kingdom. See pages 1272 and 1273.
(151) As stated by THE in a letter of 11 April 1996 from THE to NOE, pages 975 to 979 and 1135 to 1147.
(152) See page 1272 and 1273.
(153) See page 881, a letter dated 22 February 1996 from THE to [...]* of NOA.
(154) See pages 1062 and 1063, a letter dated 26 February 1996 from THE to NB, which was forwarded to NN and by NN to NF.
(155) See page 1275.
(156) Letter dated 5 March 1996 from THE to [...]* of NOA, pages 883 and 884. See also a letter from NOA to THE dated 7 March 1996, page 1750.
(157) See page 1640.
(158) Letter dated 8 March 1996 from THE to NOA, pages 886 and 887.
(159) Comparison with the year end sales forecasts (April 1996 to May 1997) contained in THE business plan presented to Nintendo (page 539).
(160) Page 816 as well as THE's reply to the Statement of Objections paragraphs 4.1 and 4.2.
(161) Pages 883 and 884.
(162) Page 1293, 1750, 1759, and 1762.
(163) See page 300, concerning the period from the acquisition of the distributorship in August 1995 until 1 January 1996, and page 320, for the subsequent period.
(164) Pages 1296 to 1302.
(165) Pages 1296 to 1302.
(166) Pages 1326 to 1333 (Linea, fax dated 1 April 1996), page 1386 (Concentra, fax dated 1 April 1996), pages 1387 to 1389 (Itochu, fax dated 2 April 1996).
(167) Page 1097 to 1109, in particular pages 1100 and 1109.
(168) Pages 975 to 979 and 1135 to 1147.
(169) Pages 963 and 1119.
(170) Pages 1097 to 1109.
(171) Pages 963 and 1119.
(172) Page 967 and 1126.
(173) Compare pages 1331 and 1332 with 1124 and 1125. See also page 1119 where NOE states that it used information provided by Linea.
(174) Pages 1097 to 1110.
(175) Page 1098.
(176) Page 1107.
(177) Page 1108.
(178) Page 1099.
(179) See letter dated 1 April 1996 from NOE to NOA, page 1098.
(180) John Menzies' reply to the statement of objections, Annex A.
(181) See pages 975 to 979 and 1135 to 1147.
(182) Page 1136. Similar statements were also made in other correspondence. A letter dated 19 April 1996 from THE to NOE reads: "You can rest assured in the fact that we have taken what I believe to be all the necessary actions to stem the supply of grey imports from the United Kingdom into mainland Europe" (page 1410). A letter dated 25 May 1996 from THE to NOA stated: "we (THE) have to compete on price to sustain the Nintendo brand market share and as a consequence grey importing into continental Europe from the United Kingdom is an attractive one. However, we have taken all the action so far that we possibly can to put a stop to this practice. (...) (page 890)". A fax from THE to [...]* dated 28 June 1996 stated: "Let me assure you that we are doing everything we possibly can to confine our product to our territory and any help we can get from our European partners/colleagues would be very much appreciated. I am sure we can work together in regard to this matter and between us, minimise the level of grey import", (page 1198).
(183) Pages 963 and 1119.
(184) Page 1136.
(185) Pages 976 and 1136.
(186) This must mean [...]*.
(187) Pages 1150 and 1151.
(188) From material presented by THE to NOE dated 25 June 1996. Page 1170.
(189) From the context of this and other correspondence it is clear that bona fide retailers are retailers which sell their stock solely to final consumers, that is, not to foreign-based traders. See for instance also pages 1150 and 1151, 1114, 1112 and 918.
(190) Page 1510.
(191) Pages 773, 1112 and 1114.
(192) For example page 908.
(193) Pages 913 and 917.
(194) Page 906.
(195) Page 1132.
(196) [...]* holds a 50 % interest in [...]* (page 918).
(197) Pages 1132 and 1133. These events are confirmed by correspondence between THE and representatives of [...]*. Pages 918 to 924 inclusive.
(198) See pages 1112 and 918. This letter was written in reply to a letter dated 14 March 1996 from the legal representatives of [...]*. THE's actions against this company therefore commenced during the boycott of THE by Nintendo. THE used similar explanations in its letter to the legal representatives of [...]* on 23 April 1996 page 923.
(199) Pages 920 and 921.
(200) See the letter of 23 April 1996 from THE to the legal representative of [...]*, pages 923 and 924.
(201) That these signed undertakings were provided is apparent from a letter of the legal representatives of [...]* to THE dated 17 July 1996 (page 926) and a letter from THE to [...]* dated 28 June 1996, (page 925). It can be inferred from the same letters that supplies had been re-established at a date before 28 June 1996.
(202) Pages 1115 and 1116.
(203) Page 1114.
(204) Pages 1431 to 1434 and also 1152 to 1154. Page 1434 is a fax machine print confirming that the questionnaire had successfully been faxed to all distributors (subsidiaries and independent distributors). THE was not among the addressees of this fax.
(205) See pages 1420 to 1422 (Linea), 1423 to 1425 (Bergsala), 1426 (NF), 1427 to 1428 (Concentra), 1435 to 1437 (NB), 1155 to 1157 (NE), 1429 and 1430 (Itochu) and 1158 to 1160 (NN). From the tables dated 30 and 31 May 1996 (pages 1438 to 1440 and 1441 to 1444), it appears that NOE also received information concerning the United Kingdom, but the source cannot be established.
(206) Pages 1441 to 1443.
(207) The N64 console had not yet been introduced in 1996.
(208) For instance, the volume of parallel imported Game Boy consoles and Game Boy compatible game cartridges into the Netherlands decreased from approximately [...]* to [...]* and from [...]* to [...]* respectively. Parallel imported SNES consoles and SNES compatible game cartridges into Italy decreased from about [...]* to [...]* and that of SNES compatible game cartridges from about [...]* to [...]*.
(209) John Menzies' reply to the Statement of Objections, paragraph 3.1 and annex D.
(210) Page 1456.
(211) Page 1195.
(212) Page 1410, a letter dated 19 April 1996 from THE to NOE. See also letter from THE to NOE re CD Contact Data, dated 14 August 1996 (page 1490).
(213) See page 1197. This is implied by a letter from THE of 28 June 1996. This letter also contains a detailed account of measures THE took against [...]*, and reassurances that it would take the necessary steps to limit the sale of THE products to the UK market.
(214) Page 925. The information on which THE acted was provided by Nintendo's Swiss distributor, so related to exports to a non-EEA country. However, THE did not merely criticise [...]* for having exported outside the EEA but for having exported to Continental Europe (that is, outside THE's territory). Thus, the fact that THE acted on exports to a non-EEA country is irrelevant.
(215) Pages 1197 and 1198.
(216) Pages 1197 and 1198.
(217) Pages 1201 and 1202.
(218) Pages 1471 and 1472.
(219) Page 1505.
(220) See letter of NOE to THE re Linea dated 7 November 1997, page 1591.
(221) Page 1504. See also page 819.
(222) Page 1506.
(223) Page 1509.
(224) Page 1509.
(225) Page 1510.
(226) Page 1511.
(227) Page 1218.
(228) Page 1218.
(229) Page 819.
(230) Page 1582.
(231) See for instance pages 1588, 1589, 1607 and 1619.
(232) Pages 1556, 1557 and 1558.
(233) Pages 1557 and 1558.
(234) Page 1580 (Italy), pages 1560,1561, 1569 (Greece), page 1597, (Norway), page 1601 (Portugal), page 1576 (Denmark).
(235) The view that, at least in 1997, parallel imports resulted from Nintendo's own pricing policy was also shared by Nortec (pages 1600 and 1622), Bergsala's Norwegian subdistributor, Unsaco (page 1603) and NE (as NE expected that changing Nintendo's pricing policy would avoid grey imports from the Community) (page 1516).
(236) Pages 1559 to 1561 (dated 23 October 1997) and 1568 and 1569 (dated 26 October 1997).
(237) Pages 1578 (dated 3 November 1997), 1582 (dated 3 November 1997), and 1579 (dated 3 November 1997).
(238) Pages 1567 (dated 24 October 1997) and 1583 (dated 6 November 1997).
(239) Page 1574 (dated 27 October 1997).
(240) Page 1576 (dated 28 October 1997).
(241) Page 1582.
(242) Page 1579.
(243) Pages 1578 and 1582.
(244) Page 1591.
(245) Page 1604.
(246) Pages 1568 and 1569.
(247) Page 1577.
(248) Page 1577.
(249) Page 1583.
(250) Page 913.
(251) Page 914 and THE's reply to the statement of objections, Annex D.
(252) Page 917.
(253) See THE's reply to the statement of objections, Annex A, comments to paragraphs 124 and 125.
(254) Pages 1398 and 1137. From the context of this phrase it is clear that THE meant that NOE would prevent parallel imports into the United Kingdom.
(255) Page 1444.
(256) THE's reply to the statement of objections, Annex A point 126.
(257) Page 1640.
(258) See for instance pages 1119 to 1122, 1135 to 1139, 1504, 1471 to 1472, and 1505.
(259) Page 743.
(260) Page 773.
(261) Page 743.
(262) Letter dated 25 April 1997, page 444. Nintendo, in a letter dated 30 October 1995, said that this is also the case for the other independent distributors that had similar clauses in their agreements (see below).
(263) Pages 301 and 458.
(264) Pages 1097 to 1100. NOE's allegation was based on the large share of sales to what THE classified as "other customers" and which NOE suspected included sales by THE to parallel traders.
(265) Page 1762.
(266) Page 829.
(267) Compare page 829 with pages 132 to 136. See also page 817. It is noted that THE's list, "Chaves Portugal" is in fact Concentra (see page 136) whereas [...]* is an employee of Unsaco, Bergsala's subdistributor for Norway (see page 1696).
(268) See the two invoices dated 9 January 1996 and 23 February 1996 on pages 830, 831 and 832.
(269) Page 891.
(270) Page 820.
(271) Page 810. THE denies this assertion on the basis that the advertisement was not directed at non-UK dealers.
(272) Page 882.
(273) See page 1752 and 817, five companies had made inquiries (see page 1752). In the absence of non-exempted restrictions THE could have supplied these companies under Commission Regulation (EEC) No 1983/83 (OJ L 173, 30.6.1983, p. 1). A prohibition on active sales relates only to the acquisition of customers.
(274) Page 136.
(275) See Article 1 of these general conditions of sale.
(276) Pages 107 and 108. The general conditions of sale read: "Los clientes pueden vender los productos de Nintendo, solo en el territorio Español" (page 420A).
(277) For similar instructions, see page 1251.
(278) Page 1028 Original text: "En cualquier caso, y para evitar que los importadores italianos se puedan surtir [SN + SMAS products] a través de otros clientes, por la presente se prohíbe la facturación a cualquier cliente, que no sea una gran superficie, de cantidades superiores a 100 uds. de esta configuración, sin la autorización firmada por tu parte de dicho pedido. Tu ruego que cada vez que te pase el departamento de facturación un pedido de SN+SMAS para tu autorización, tengas la seguridad razonable de que dicho producto sea para consumo nacional."
(279) Page 1028. Original text: "Un detallado análisis de las ventas de esta configuración a nuestros clientes nos lleva irremediablemente a la conclusión que, con un alto grado de probabilidad, los responsables de esta exportación son uno ó ambos de estos clientes. En consecuencia, queda prohibida la venta a [...]* de SN+SMAS, salvo autorización expresa y firmada por mi"
(280) Page 1027: Original text: "Nota Aclaratoria: Según la conversación mantenida con Vd. en el día de ayer, pongo en su conocimiento que las Vídeo Consolas que les estoy pidiendo en la presente, son para venderlas aquí en España. (...) Confío que con esta aclaración, quede totalmente satisfecho en lo que al destino que voy a dar a las consolas se refiere."
(281) Page 1027: Original text: "No me creo que no vengan a exportar, por lo menos una parte. Servir únicamente 500, diciendo al cliente que estamos a la espera de recibir mas stock."
(282) Page 1161.
(283) Pages 116 and 118.
(284) See pages 110, 118, 119 and 120.
(285) Pages 1224 and 1225.
(286) Page 1226: "Exportación de producto (...) Me dirijo a ti, ya que hemos detectado que [...]* SL ha estado enviando producto de Nintendo España s.a. a algun distribuidor de videojuegos en Francia. Como tu ya sabes, el producto que Nintendo España s.a. te suministra, es exclusivamente para vender en el mercado nacional y el hecho de exportar este producto a Francia o a cualquier otro pais, no es una practica que nosotros aprobemos en ningun caso. Te ruego dejes de efectuar cualquier tipo de operación con clientes que no pertenecen al territorio nacional, o nos veremos en la obligación de tomar medidas que en ningun caso creemos que tu empresa se merezca."
(287) Page 1230.
(288) See letters on pages 1040 and 1041 (dated 17 January 1996), 1042 (undated), 1044 and 1045 (dated 22 January 1996), 1155 (dated 30 May 1996), 1161 and 1162 (dated 10 June 1996), 1266 (dated 28 January 1996) 1280 and 1281 (dated 28 February 1996), 1336 and 1337 (dated 1 April 1996), 1492 (dated 5 September 1996), 1498 (dated 21 October 1996), 1515 and 1516 (dated 1 April 1997) and 1554 (dated 21 October 1997). The quotes and example come from pages 1042, 1044 and 1281.
(289) Page 1041. [...]* is a parallel trader established in Sweden (page 1126).
(290) Page 1267.
(291) Page 1161.
(292) Page 1042.
(293) Page 1045.
(294) Page 1281.
(295) The formal contractual relationship between NN and its customers consists of general terms and conditions of sale (pages 417 and 418).
(296) Page 1049.
(297) Page 632. Original text: "Meerdere malen heeft Nintendo opmerkingen gemaakt dat [...]* doorleverde aan Omega. Dit was statistisch te zien, volgens Nintendo. Verschillende keren heeft Nintendo de levering opgeschort, alsmede geblokkeerd. Meerdere malen heeft men inzage gevorderd in de administratie van [...]*."
(298) Page 998. From NB's reply to NOE to the same letter it becomes clear that the products in question originated from the United Kingdom. NB at the time then took up this matter with NUK.
(299) See pages 998 (dated 28 October 1994) 1020 and 1021 (dated 27 April 1995), 1049 (dated 13 February 1996), 1050 and 1051 (dated 21 February 1996), 1058 and 1059 (dated 26 February 1996), 1061 (dated 26 February 1996), 1078 (dated 18 March 1996), 1088 (dated 27 March 1996), 1158 (dated 30 May 1996), 1216 (dated 28 October 1996), 1218 (dated 26 March 1997), 1220 (dated 25 April 1996), 1334 (dated 1 April 1996), 1412 (dated 23 May 1996), 1445 (dated 5 June 1996), 1500 (dated 28 October 1996), 1506 (dated 6 December 1996) and 1509 (dated 10 December 1996). That NN feared price erosion can for instance be deduced from pages 1021, 1049, 1051, 1058. Customer relations are mentioned on pages 1051 and 1058.
(300) Page 2216.
(301) See pages 998 (dated 28 October 1994) 1031 (dated 27 December 1995), 1049 (dated 13 February 1996), 1052 (dated 23 February 1996), 1060 (26 February 1996), 1219 (14 April 1997), 1221 (dated 29 April 1997), 1224 and 1225 (dated 3 July 1997), 1227 to 1229 (dated 24 October 1997), 1255 (undated), 1257 (dated 29 December 1995), 1258 (dated 8 January 1996) and 1259 (dated 9 January 1996). NF did also control by statistical means whether its customers carried parallel imported products (see below).
(302) See letter from Contact to NOE dated 4 September 1997 (pages 1536 to 1538).
(303) Page 1566.
(304) Page 1228.
(305) Prior to 1998, these retroactive rebates were paid by NF after the annual duration of the agreement and per 1998 partly retroactively every semester and partly after the end of the annual term of the agreement. See the 1995 and 1996 versions of these standard agreements (pages 361 to 413), page 2234 for 1997 versions and page 1546 regarding 1998.
(306) Page 132.
(307) The standard agreements for retailers read: "De produkten van Nintendo Belgium zijn uitsluitend bestemd voor verkoop aan particulieren" (page 355) and "Les produits Nintendo sont uniquement destinés à la vente au particuliers" (page 351) (The products of Nintendo (Belgium) are destined solely for sale to final consumers).
(308) Page 998.
(309) Page 1245.
(310) NB did not take action because the outcome of its investigation was that the products were imported from the United Kingdom, and not from Belgium. Subsequently, NB took the matter up with NUK.
(311) Page 1460.
(312) Page 1462.
(313) See pages 998 (dated 28 October 1994) 1245 (dated 2 February 1996), 1303 (dated 1 April 1996), 1435 (dated 30 May 1996) 1460 (dated 24 June 1996), 1462 (dated 24 June 1996), 1482 (dated 24 July 1996), 1501 (dated 6 November 1996).
(314) Pages 138 to 153.
(315) Pages 1229 and 1566 and in particular hand written notes on page 1564. See also recital 131.
(316) Page 1575.
(317) Page 141 paragraph 4.6.
(318) Page 1575.
(319) Pages 1536 (dated 4 September 1997), 1575 (dated 28 October 1997), 1581 (dated 3 November 1997), 1595 (dated 12 November 1997), 1605 (dated 4 December 1997), 1608 (dated 4 December 1997).
(320) Page 1581.
(321) Pages 1605, 1606 and 1607.
(322) Page 1610.
(323) Page 1608.
(324) Page 1536 to 1538.
(325) Pages 1539 to 1542.
(326) Page 1595.
(327) Page 415 "Vertragsgebiet (...) Die Kunden dürfen Nintendo-Produkte nur in der Bundesrepublik Deutschland an Endverbraucher verkaufen".
(328) Page 107.
(329) Pages 1001 and 1002.
(330) See submission of Nintendo dated 1 September 1998, page 22 (page 2302).
(331) Pages 1512, 1513 and 1514. "Die Kontaktaufnahme mit [...]* ergab, daß die Ware fürs Ausland vorgesehen ist. Ich habe daraufhin die Angelegenheit abgelehnt."
(332) Page 998.
(333) Page 157.
(334) Page 154.
(335) Pages 2501, 2502 and 2506.
(336) Page 157.
(337) Page 157.
(338) Page 159.
(339) Page 156.
(340) Page 160.
(341) Page 171.
(342) Pages 1066 (dated 6 March 1996), 1272 (dated 22 February 1996), 1387 (dated 2 April 1996), 1290 (dated 1 April 1996), 1429 (dated 30 May 1996), 1674 (dated 2 August 1993), 1675 (dated 27 March 1993) and 1749 (7 March 1996).
(343) Page 1066.
(344) Page 1675.
(345) Page 886.
(346) Page 1749.
(347) Page 2595 to 2610, 1622 to 1624, Nortec's reply to the Statement of Objections paragraph 1.
(348) Pages 1559 (dated 23 October 1997), 1560 (dated 23 October 1997), 1561 (dated 23 October 1997), 1568 and 1569 (dated 26 October 1997), 1577 (dated 3 November 1997), 1587 (dated 7 November 1997), 1596 (dated 17 November 1997), 1600 (dated 20 November 1997), 1604 (dated 3 December 1997), 1612 (dated 11 December 1997), 1614 (dated 16 December 1997), 1622 (dated 5 January 1998) and 1789 (dated 7 November 1997). In order to appreciate the efforts Nortec made to trace the parallel exporters, see in particular page 1577.
(349) Page 1604.
(350) Page 1561.
(351) Page 1560.
(352) Page 1569.
(353) Page 1596.
(354) Page 1600.
(355) Page 1577.
(356) Page 1622.
(357) Page 244.
(358) Page 136. Letter from Concentra dated 17 September 2002.
(359) Page 241.
(360) Pages 243, 244 and 245.
(361) Page 1746.
(362) Page 1386.
(363) Page 1428.
(364) Page 1601.
(365) Page 200.
(366) Page 196.
(367) Page 200.
(368) Page 199.
(369) Pages 200, 201 and 202.
(370) Pages 240 and 201.
(371) See Linea's reply the Statement of Objections paragraph 4.1.
(372) Pages 1201 (dated 8 July 1996), 1326 to 1333 (dated 1 April 1996), 1420 to 1422 (dated 29 May 1996), 1471 (dated 10 July 1996), 1505 (dated 3 December 1996), 1578 (dated 3 November 1997), 1579 and 1580, (dated 3 November 1997) 1582 (dated 6 November 1997) and 1592 (dated 7 November 1997).
(373) Page 1201.
(374) Page 1471.
(375) Linea's reply to the Statement of Objections paragraph 4.1.
(376) Page 1505.
(377) Linea's reply to the Statement of Objections paragraph 4.2.
(378) Bergsala's reply to the Statement of Objections.
(379) Page 2300.
(380) Bergsala's reply to the Statement of Objections.
(381) [...]* is a parallel trader established in Sweden. (page 1126).
(382) Page 1264. This letter was sent by NE to NOE, who then forwarded it to NCL (page 1266).
(383) Page 1265.
(384) Page 1518.
(385) Page 1676.
(386) Pages 1264 (dated 25 January 1996), 1266 (dated 25 January 1996), 1423 (dated 30 May 1996), 1497 (dated 8 October 1996), 1517 and 1518 (dated 30 April 1997), 1574 (dated 27 October 1997), 1576 (dated 28 October 1997) and 1795 (dated 17 November 1997).
(387) Pages 1567 (dated 24 October 1997), 1583 (dated 6 November 1997), 1597 (dated 17 November 1997), and 1603 dated (28 November 1997).
(388) Page 1576 (dated 28 October 1997).
(389) Page 1497.
(390) Pages 1009 to 1012.
(391) Pages 1028 and 1251.
(392) Page 1161.
(393) Pages 1001 and 1002.
(394) Page 632.
(395) Page 1544. "Certain shops must import given their ratios. Recall them that the cooperation agreements will be broken if this is the case". From the letter it is clear that NF meant the ratio of game console sales to compatible game cartridges sales.
(396) Pages 1229 and 1566.
(397) Pages 1296 to 1302.
(398) Pages 1431 to 1434 and 1152 to 1154.
(399) Page 1431.
(400) Page 1676.
(401) Page 1750.
(402) On 3 November 1997 NOE asked Linea (page 1578): "(...) Is it possible that you research about the importer of Italy and exporter of UK of these products?" A letter three days later stated: (page 1582) "we would need from you: A. names and addresses of main 'grey importers' in the past, B. same for companies who might be offering N64 from UK, C. quantities, price and delivery dates of offers in the market place right now or in the future, D. any indication of the source of course would be perfect." A fax dated 6 November 1997 from [...]* to NOE (page 1583) stated: "As promised I give you all the information I have regarding the parallel import from the UK". In a letter from Nortec to NOE dated 20 November 1997 (page 1600) it is stated inter alia: "As I have promised to [...]*, I am sending you by courier today, all evidence we have from various exporters regarding N64 hardware (...)". Nortec also sent detailed information on the origin of parallel trade in its territory in a letter dated 7 November 1997, pages 1587 and 1592 and in a letter dated 17 November 1997, page 1596).
(403) Page 1676.
(404) Page 1444.
(405) Page 1218.
(406) In order to access NOE role, the following pages may also be relevant: 996, 1000, 1022, 1071, 1081, 1085, 1097, 1112, 1119, 1132, 1135, 1152, 1158, 1163, 1188, 1203, 1209, 1216, 1220, 1247, 1249, 1296, 1390, 1396, 1409, 1444, 1455, 1504,1506, 1511, 1526, 1529, 1539 and 1556.
(407) Page 1275.
(408) Page 1750.
(409) Page 1760.
(410) In order to prevent unnecessary repetition, any references to Article 81 of the Treaty also refer to Article 53 of the EEA Agreement.
(411) Case T-352/94 Mo Och Domsjö AB v Commission [1998] ECR II-1989, at paragraph 87.
(412) See Judgment of the Court of Justice in Case C-73/95 P Viho v Commission, [1996] ECR I-5457.
(413) Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 112 and Joined cases 209/78 to 215/78 and 218/78 Van Landewyckand others v Commission [1980] ECR 3125, paragraph 86 and the Judgment of the Court of First Instance in Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 256 and Judgment of the Court of First Instance in case T-41/96 Bayer AG v Commission (Adalat), paragraph 67.
(414) Case 107/82 AEG v Commission [1983] ECR 3151, paragraph 38; Joined cases 25/84 and 26/84 Ford and Ford Europe v Commission [1985] ECR 2725, paragraph 21; Case T-43/92 Dunlop Slazenger v Commission [1994] ECR II-441, paragraph 56.
(415) Joined Cases 32/78, 36/78 to 82/78 BMW Belgium and Others v Commission [1979] ECR 2435, paragraph 28 to 30; AEG, paragraph 38; Ford and Ford Europe, paragraph 21; Case 75/84 Metro v Commission (Metro II) [1986] ECR 3021, paragraphs 72 and 73; Case C-277/87 Sandoz v Commission [1990] ECR I-45, paragraphs 7 to 12; Case C-70/93 BMW v ALD [1995] ECR I-3439, paragraphs 16 and 17; Adalat, paragraph 72.
(416) The case-law of the Court of Justice and Court of First Instance in relation to the interpretation of Article 81 of the EC Treaty also applies to Article 53 of the EEA Agreement. References to Article 81 of the EC Treaty therefore apply also to Article 53 of the EEA Agreement.
(417) (Judgment in Case 48/69, ICI v Commission [1972] ECR 619 at paragraph 64).
(418) Joined Cases 40-48/73, etc. Suiker Unie and others v Commission [1975] ECR 1663.
(419) See judgment of the Court of First Instance in Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 256.
(420) Judgment in Case C-199/92P Hüls v Commission, [1991] ECR page I-4287 paragraph 158-166.
(421) See Hercules, paragraph 264.
(422) [1999] ECR I-4125, paragraph 81.
(423) In this sense, John Menzies' agreement was very similar the those of Concentra, Itochu and Linea Compare recitals 110, 114, 137, 138 (John Menzies) with recitals 204 and 205 (Itochu) recital 211 (Concentra) and recital 215 (Linea).
(424) Itochu's reply to the Statement of Objections paragraph 33.
(425) See Nintendo's reply to the Statement of Objections paragraph 6.2.
(426) See John Menzies' reply to the Statement of Objections, cover letter point 4 and paragraph 9.2.
(427) See Bergsala's reply to the Statement of Objections paragraph 1.3 together with paragraph 358 of the statement of objections.
(428) See Concentra's reply to the Statement of Objections paragraph 3 together with paragraph 358 of the statement of objections.
(429) See Linea's reply to the statement of objections paragraph 2 together with paragraph 358 of the Statement of Objections.
(430) This consideration is irrelevant for Itochu (as it stop being a exclusive distributor for Nintendo when it formal distribution agreement expired) and for Nortec and Contact (as their participation to the infringement commenced after February 1997, when the last formal distribution agreement restricting parallel trade had expired).
(431) Recitals 107, 124, 127, 131, 140, 142, 143, 145, 146, 147 to 150, 155 to 157, 160, 180, 181, 184, 185, 187, 191, 192, 193, 195, 197, 200, 201, 206, 208, 209, 213, 217 to 221, 223, 224, 225 to 227.
(432) Itochu's reply to the statement of objections, footnote 12.
(433) Case C-49/92 Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 122.
(434) Cover letter to John Menzies' reply to the Statement of Objections together with paragraphs 81 and 268 of the Statement of Objections.
(435) Nortec's reply to the Statement of Objections paragraph 3 together with paragraphs 81 and 189 and 190 of the statement of objections.
(436) Case T-28/99 Sigma v Commission, Judgment of 20 March 2002, not yet reported, paragraph 40. Anic, paragraph 203).
(437) See for instance the instances referred to in recital 237, the conflict between John Menzies and Nintendo, its resolution and the collaboration that developed subsequently (recitals 130 and 131, 147 to 150, 155 to 158), Nintendo's contacts with Contact (recitals 195 and 197) and Bergsala (recitals 223 and 224).
(438) The existence of a mutual interest among distributors was even recognised by John Menzies (recitals 160 and 161), despite the fact that, in view of the low prices to trade in the United Kingdom, it was unlikely to gain in the short run from the infringement.
(439) Anic, paragraphs 95 and 96.
(440) Judgment in Joined Cases 100 and 103/80 SA Musique Diffusion Française v Commission [1983] ECR 1825, paragraph 75.
(441) Nintendo's reply to the statement of objections paragraphs 2.1 and 2.2.
(442) John Menzies reply to the statement of objections, cover letter, point 4 on page 2, and paragraph 4.4.
(443) Linea's reply to the statement of objections paragraphs 2 and 4.2.
(444) Nortec's reply to the statement of objections paragraphs 2 and 3.
(445) Bergsala's reply to the statement of objections paragraphs 1, 2 and 4.1.
(446) Itochu's reply to the Statement of Objections, section C.
(447) See John Menzies' reply to the Statement of Objections, page 8 as well as the policy statement itself (pages 861 to 863).
(448) Up to 1 January 1998, John Menzies had three successive agreements with Nintendo of which the first two, the one valid from 4 August 1995 until 31 December 1995 and the one valid from 1 January 1996 until 31 December 1996, contained the provisions referred to here. (The former agreement was, due to a clerical error, onerously dated in footnote 88 of the Statement of Objections. However, it was clearly referred to as the basis of the Commission's assertion that John Menzies participated in the plan from August 1995 onwards (see recital 358(b)). The dates are also correctly referred to in paragraph 259 of the Statement of Objections).
(449) See page 297A, 313 and also 298A.
(450) A direct causal link between John Menzies' agreement and its behaviour towards its customers can also be deduced from the correspondence between John Menzies and [...]* and John Menzies and [...]*, that took place subsequent to February 1996. (recitals 137, 138 and 144).
(451) John Menzies' reply to the statement of objections, section 2 and Annex A, reference to paragraph 83.
(452) As it was not unilateral set, THE Games commercial policy regarding authorised customer does not bear resemblance, as John Menzies argued (John Menzies' reply to the statement of objections, Section 1), to the conduct of Bandai UK against which John Menzies had previously complained about to the Monopoly and Mergers Commission.
(453) See page 297A, 313 and also 298A.
(454) Linea's reply to the Statement of Objections paragraph 3.
(455) Concentra's reply to the Statement of Objections paragraph 4.
(456) Itochu's reply to the Statement of Objections paragraph 30.
(457) Nortec's reply to the Statement of Objections, paragraph 3.
(458) Contact's reply to the Statement of Objections paragraph 30.
(459) Contact's reply to the Statement of Objections paragraph 12 and annexes 1 and 2 as well as Contact's submission of 6 November 2000 under "question 1" and "question 2" and annexes 1 to 4.
(460) Judgment in Case T-148/89 Tréfilunion SA v Commission [1995] ECR 1995 page II-1063 paragraph 79, referred to in Judgment in Case T-308/94 Cascades SA v Commission, [2002] ECR II-813, paragraph 106.
(461) [1991] ECR II-1711.
(462) [1992] ECR II-499.
(463) Contact's submission of 6 November 2000, under "question 5".
(464) Judgment in Joined Cases 56 and 58/64 Consten and Grundig v Commission, [1966] ECR English Special Edition p. 299.
(465) Judgment in Case T-308/94 Cascades v Commission, paragraph 230.
(466) [1992] ECR II-499.
(467) Judgment in Case T-334/94 Sarrió SA v Commission [1998] ECR II-1439.
(468) Contact's reply to the Statement of Objections, paragraphs 16, 17, 29 and 35.
(469) See Hüls, paragraph 128, and Tréfilunion, paragraph 58.
(470) However, to the extent that this behaviour concerned a Nintendo subsidiary that would not supply customers established in a territory in which another Nintendo subsidiary had been made responsible for the distribution of the products, it does not fall within the scope of Article 81(1) (see VIHO).
(471) See Judgment, in Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström and others v Commission (Woodpulp), [1993] ECR I-1307, paragraph 176 or Judgment in Case 19/77 Miller v Commission [1978] ECR 131.
(472) OJ L 214, 6.8.1997, p. 27.
(473) [1966] ECR 429.
(474) Nintendo initially contended that the prices at which the products were supplied from Japan to subsidiaries and independent distributors in Europe were similar. Nintendo attributed the price differentials and the parallel trade that developed to (undefined) local market conditions and exchange rate fluctuations within Europe (pages 1640 and 1641). However, Nintendo has not contested the Commission's rebuttal of this argument in the Statement of Objections (see recitals 324 to 337 thereof).
(475) Pages 881 and 882 (letter from John Menzies to NOA dated 22 February 1996), 890 (letter from John Menzies to NOA dated 24 May 1996) pages 975 to 979 and 1135 to 1147. See also John Menzies' business plan (pages 1163 to 1187) as presented to NOE which contains various references to strong price competition in the United Kingdom.
(476) Page 1622.
(477) Nintendo's reply to the Statement of Objections paragraph 6.2.
(478) John Menzies' reply to the Statement of Objections, paragraph 4.
(479) Concentra's reply to the Statement of Objections paragraph 3.
(480) Linea's rely to the Statement of Objections paragraphs 2 and 5.
(481) Page 157.
(482) Page 181.
(483) Judgment in Case C-286/98 P Stora Kopparbergs Bergslags AB v Commission, [2000] ECR I-9925, paragraph 26.
(484) Judgment in AEG paragraph 50, judgment in Stora paragraphs 22 to 30; see also the opinion of Advocate General Mischo in Stora, paragraph 48.
(485) See Contact's submission of 16 November 2001.
(486) Itochu's reply to the Statement of Objections, paragraphs 23 and 24 as well as its submission of 26 November 2001.
(487) In particular, Tipp-ex (Commission Decision 87/406/EEC in Cases IV/31.192 and IV/31.507 (OJ L 222, 10.8.1987 p. 1)), Tretorn and others (Commission Decision 94/987/EC in Cases IV/32.948 - IV/34.590 (OJ L 378, 31.12.1994 p. 45)) and Volkswagen I (Commission Decision 98/273/EC in Case IV/35.733 (OJ L 124 of 25.4.1998 p. 60)).
(488) SA Musique Diffusion Française, [1983] ECR, paragraph 109.
(489) SA Musique Diffusion Française, [1983], ECR 1825, paragraph 107.
(490) See Nortec's reply to the Statement of Objections, page 3.
(491) See Bergsala's reply to the Statement of Objections paragraph 4.1.3.
(492) See pages 1686 to 1694, 1699 to 1702, 1705 and 1706, 1714 to 1716, 1720 and 1721, 1727 to 1734, 1737 to 1739, 1743, 1746 and 1806.
(493) See pages 1720 and 1806.
(494) Argument made in letter of NOA to the Commission dated 16 April 1998, page 1633.
(495) Pages 1638 to 1641.
(496) See Judgment in Case, T-66/92 Herlitz v Commission [1994] ECR p. II-531, paragraph 45.
(497) See Itochu's reply to Statement of Objections, paragraph 20.
(498) Itochu's reply to the Statement of Objections paragraph 47.
(499) SA Musique Diffusion Française, [1983] ECR 1825, paragraph 75.
(500) Nintendo's reply to the Statement of Objections paragraph 6.16.
(501) Judgment of the Court of First Instance of 20 March 2002 in Case T-31/99 Asea Brown Boveri Ltd v Commission (ABB) [2002] ECR II-1881, paragraph 211.
(502) ABB, paragraph 214 and judgment of 20 March 2002 in Case T-21/99, Dansk Rørindustri v Commission, [2002] ECR II-1681, paragraph 153.
(503) ABB paragraph 212.
(504) Nintendo's reply to the Statement of Objections paragraph 6.4.
(505) Pages 1639 and 1640 and Nintendo's reply to the Statement of Objections paragraph 4.2.
(506) Page 1640.
(507) Page 1464.
(508) Similar conclusions can be drawn from page 1546.
(509) Page 1640.
(510) John Menzies' reply to the Statement of Objections paragraph 9.2.
(511) John Menzies' reply to the Statement of Objections, Annex A point 214.
(512) Page 439, question 3.
(513) Page 437.
(514) Page 447.
(515) Page 446.
(516) John Menzies' reply to the Statement Objections paragraph 9.4.
(517) Bergsala's reply to the Statement of Objections paragraph 4.1.1.
(518) Linea's reply to the Statement of Objections paragraph 3.
(519) Itochu's reply to the Statement of Objections paragraphs 36 to 38 and paragraph 42.
(520) Itochu's reply to the Statement of Objections, paragraph 37.
(521) See Itochu's reply to the Statement of Objections, paragraph 31.
(522) Case T-308/94 Cascades SA v Commission, [1998] ECR II-925, paragraph 230.
(523) In particular, Commission Decision 87/406/EEC in Cases IV/31.192 and IV/31.507 Tipp-ex (OJ L 222 of 10.8.1987, p. 1) and the Commission Decision 94/987/EC (OJ L 378, 31.12.1994, p. 45) in cases IV/32.284 - 34.590 Tretorn and others (with particular reference to the case of Tenimport) (OJ L 378, 31.12.1994, p. 45) and Commission Decision 98/273/EC in Case IV/35.733 Volkswagen (OJ L 124, 25.4.1998, p. 60).
(524) Linea's reply to the Statement of Objections, paragraph 4.2.
(525) Bergsala's reply to the Statement of Objections, paragraph 4.1.4.
(526) Linea's reply to the Statement of Objections paragraph 4.2.
(527) Itochu's reply to the Statement of Objections paragraph 43.
(528) Linea's reply to the Statement of Objections, paragraph 5.
(529) See Nintendo's reply to the Statement of Objections, Annex B.
(530) Nintendo's submission of 21 December 2001.
(531) John Menzies' reply to the Statement of Objections, paragraph 9.4.
(532) Itochu's reply to the Statement of Objections, paragraph 40.
(533) John Menzies' reply to the Statement of Objections, paragraph 5.
(534) Contact's reply to Statement of Objections, paragraph 37.
(535) OJ L 378, 31.12.1994, p. 17.
(536) Nintendo's reply to the Statement of Objections paragraphs 6.9 to 6.14.
(537) John Menzies' reply to the Statement of Objections, paragraph 10.
(538) Linea's reply to the Statement of Objections, paragraph 2.
(539) Bergsala's reply to the Statement of Objections, paragraph 3.
(540) Contact's reply to the Statement of Objections, paragraph 37.
(541) OJ C 207, 18.7.1996, p. 4.
(542) Pages 988, 1236 and 1668.
(543) See judgment in Case C-297/98 P, SCA Holding v Commission [2000] ECR I-10101, paragraph 36.
(544) Judgment in Joined Cases 96 to 102, 104, 108 and 110/82 NV IAZ International Belgium and others v Commission (Navewa) [1983] ECR 3369, paragraphs 54-55.
(545) Pursuant to Articles 160 et seq. of Royal Decree No 267 of 16 March 1942.
(546) IV/26.870, Aluminium imports from Eastern Europe.
(547) Bergsala's reply to the Statement of Objections, paragraphs 2.6, 2.7 and section 4.2, substantiated further by Bergsala's submission of 17 November 2000.
(548) Bergsala's submission of 10 May 2001.
(549) Bergsala's submission of 10 May 2001.
