CASE AT 39899 Licensing of IPRs for football collectibles

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EUROPEAN COMMISSION,Brussels 15 72014,SG Greffe 2014 D 10137. C 2014 5123 final,Topps Europe Limited,18 Vincent Avenue. Crownhill Business Centre,Milton Keynes,United Kingdom. Subject Case AT 39899 Licensing of intellectual property rights for football. collectibles,Commission Decision rejecting the complaint. Please quote this reference in all correspondence, 1 I am writing to inform you that the European Commission the Commission has.
decided pursuant to Article 7 2 of the Commission Regulation EC 773 2004 to reject. your complaint against Panini S p A Panini Union des Associations Europ ennes de. Football UEFA F d ration Internationale de Football Association FIFA. F d ration Francaise de Football the FFF Associazione Italiana Calciatori the. AIC Real FederaciOn Espa ola de F tbol the RFEF and Deutscher Ful3ball Bund. the DFB collectively the Targeted Parties,1 THE CoMPLAiNT AND FURTHER SUBMISSIONS. 2 Topps Europe Limited Topps is a limited company registered in England and Wales. and active in the marketing and sale of a range of collectible products across Europe In. relation to football tournaments Topps produces official FA Premier League England. FA and Bundesliga football collections, 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 Official Journal L 123 27 04 2004 pages 18 24. Commission europeenne DG COMP GREFFE ANTITRUST 8 1049 Bruxelles Belgique. Europese Commissie DG COMP GREFFE ANTITRUST 8 1049 Brussel Belgie. Tei 32 2 299 1111 Fax 32 2 295 01 28 e mail COMP GREFFE ANTlTRUSTec europa eu. 3 On 28 March 2011 you filed a complaint against Panini an Italian joint stock company. active inter alia in the production and marketing of football collectibles UEFA FIFA. and various football federations in connection with the licensing and acquisition of. various intellectual property rights IPRs for the purpose of producing collectibles. relating to national and international football tournaments In your complaint you alleged. that a number of national football governing bodies and players associations together. with Panini had breached Articles 101 and 102 of the Treaty on the Functioning of the. European Union TFEU, 4 On 14 June 2011 you filed a further submission narrowing the scope of the original. complaint to the Targeted Parties and focussing your complaint solely on the acquisition. of rights required to produce collectibles relating to the main international football. tournaments namely the FIFA World Cup World Cup and the UEFA European. Football Championship EURO,5 With regard to Article 101 TFEU you argue that. Firstly the Targeted Parties entered into long term exclusive agreements both in. collective and individual selling of rights,by means of which an exclusive.
licence for the production of official World Cup and UEFA collections would. have been granted to Panini resulting in the total market foreclosure of these two. markets You also claim that the duration of such exclusive licences has. prevented other companies from producing an official tournament collection. Secondly the wide scope of the licences whereby the right holders grant licence. to many varied collectible products together stickers and trading cards is anti. competitive, Thirdly the tender process for granting such licences has been discriminatory and. not conducted in an open transparent fair and non discriminatory manner. Finally you argue that Panini has been imposing wide ranging exclusive. purchasing obligations on its own distributors and also on those distributors. downstream customers thereby preventing the latter from stocking other. unofficial football collectibles, 6 With regard to Article 102 TFEU you claim that UEFA FIFA and the national football. federations which hold IPRs indispensable to create World Cup and EURO football. collectibles collections infringed Article 102 TFEU by. having consistently discriminated against Topps in favour of Panini by refusing to. accept any form of a bid by Topps and or treating it differently and unfairly when. it was permitted to make an offer As a result Panini holds a dominant position. on the market for collectibles for the World Cup and the EURO. Collectibles are items like stickers trading cards and models figurines For the sake of simplicity as this case. only concerns stickers and trading cards this letter uses the term collectibles to refer to stickers and trading. cards unless expressly stated otherwise, Collective selling takes place when the right holders entrust an entity association to sell their rights. behalf e g a football association sells the rights of clubs on behalf of clubs. refusing to supply license the IPRs at issue to Topps. 7 You also claim that Panini has been charging excessive prices for football collectibles. and therefore has caused consumer harm In addition you claim that Panini has been. imposing wide ranging exclusive purchasing obligations on its own distributors and also. on those distributors downstream customers thereby preventing the latter from stocking. other unofficial football collectibles in breach of Article 102 TFEU. 8 On 4 July 2011 the Commission sent a non confidential version of the complaint to the. Targeted Parties The Commission issued a request for information under Article 18 of. Regulation No 1 2003 on 5 July 2011 to Panini UEFA and FIFA and on 8 July 2011 to. AIC FFF RFEF and DFB The Targeted Parties submitted their comments and their. replies to the requests for information in November 2011 You made additional written. submissions to the Commission by letters of 18 October 2011 and 8 February 2012. 9 On 16 May 2012 the Commission asked for further information and you replied to that. request on 6 June 2012 On 16 May 2012 the Commission also asked for further. information from Panini AIC and UEFA and their responses were received in the course. of June 2012, 10 On 28 September 2012 you provided the Commission with what you considered to be an. update of the state of play in relation to on going discussion between Topps and the. national football associations More particularly you referred therein to negotiations. between the J for the licensing of rights for national league collectibles In. subsequent letters addressed to the Commission on 21 and 28 February 2013 you. commented again on those negotiations In those letters you admitted that in view of your. initial submissions such negotiations would have an effect on an additional market not. included within the scope of your complaint, 11 By letter of 26 March 2013 the Article 7 1 letter the Commission informed you of.
its intent to reject your complaint In response you made additional observations in your. letter of 25 April 2013 the Reply stating that you did not agree with the. Commission s assessment In your view a separate downstream market should be defined. for the EURO and World Cup collectibles and as to the upstream market the. Commission should have concluded that the rights are indispensable for market entry. Furthermore you argue that the Commission failed to identif that the Targeted Parties. discriminated against you and that their behaviour amounts to a refusal to supply You. take issue with the four year duration of the contracts and claim that the Targeted Parties. described practices have led de facto to periods of long term exclusivity You also. argue that the Commission did not address your claims concerning Panini s exclusive. purchase agreements and asked the Commission to reconsider its position. 12 On 14 June 2013 the Commission sent a request for information to Panini to obtain its. views concerning the exclusive purchasing agreements On 1 July 2013 Panini provided. answer to the request for information On 16 August 2013 the Commission sent requests. for information to some of Panini s importers concerning the alleged exclusive. purchasing agreements Panini s importers provided their answers on 4 September 2013. 13 On 11 July 2013 you provided further comments on the Article 7 1 letter On 3. September 2013 and with your consent the Commission sent Panini a non confidential. version of your submission of 11 July 2013 Panini submitted its comments on 26. September 2013, 14 On 27 September 2013 the Commission sent you a supplementary Article 7 1 letter. regarding exclusively the infringement of Articles 101 and 102 TFEU which could result. from the alleged exclusive purchase obligations imposed by Panini. 15 On 29 October 2013 you submitted comments on the supplementary Article 7 1 letter. On 4 December 2013 you commented on the responses of the RFEF and the FFF to the. Commission s request for information On 16 December 2013 you provided us with a. copy of your letter to 1 On 15 January 2014 Panini submitted additional information. On 21 March 2014 you submitted an additional letter providing an update about the. tender processes of,2 AssEssMENT,2 1 Priority setting and introductory remarks. 16 The Commission is unable to pursue every alleged infringement of EU competition law. which is brought to its attention and according to the settled case law of the EU courts it. is not required to conduct an investigation of each complaint it receives The. Commission has limited resources and must therefore set priorities in accordance with. the principles set out at points 41 to 45 of the Notice on the handling of complaints. 17 The EU courts have also recognized that the Commission has discretion in its treatment. of complaints 6 In particular the Commission is entitled to give differing degrees of. priority and refer to the EU interest in order to determine the degree of priority to be. applied to the complaints brought before it, 18 When deciding which cases to pursue the Commission takes various factors into account. depending on the circumstances of each individual case The EU courts have recognised. that the number of criteria of assessment to which the Commission may refer is not. limited nor is the Commission required to have recourse exclusively to certain criteria. Where appropriate the Commission may give priority to a single criterion for assessing. the EU interest, 19 In this regard the Commission may take into consideration whether on the basis of the. information available it seems likely that further investigation will ultimately result in. See case 1 24 90 Automec v Commission 1992 ECR 11 223 para 76. OJ C 101 27 04 2004 p 65 See also the Commission s Report on Competition Policy 2005 p 25 27. See cases C 119 97 P Ufex v Commission 1999 ECR 1 1341 para 88 T l93 02 Laurent Piau v. Commission paras 44 and 80, See Case C 450 98 P International Express Carriers Conference JECC c Commission 2001 ECR 1 3947.
paras 57 59, the finding of an infringement The Commission may also examine the scope of the. investigation required If it emerges that an in depth investigation would be a complex. and time consuming matter and the likelihood of establishing an infringement appears. limited this will weigh against further action by the Commission. 20 In the present case the Commission has undertaken an investigation of the Complaint. the results of which are set out further It must be stressed that the prima facie assessment. of the Complaint and your further submissions has not provided any convincing. information on the basis of which it would be possible to conclude at this stage that there. are likely infringements of competition law It also seems unlikely that such. infringements would be found after devoting additional investigatory resources Further. investigation therefore appears to be disproportionate. 2 2 The likelihood of establishing the existence of an infringement. 21 As aforesaid the likelihood of establishing the existence of an infringement of Article. 101 and or 102 TFEU in this case appears limited,2 2 1 Alleged violations ofArticle 101 TFEU. 22 The complaint raises several alleged breaches of Article 101 TFEU. 23 Firstly you argue that the Targeted Parties entered into long term exclusive agreements. and therefore prevented entry in the relevant market However this allegation has not. been confirmed by our preliminary investigation The duration of the licensing. agreements does not prima facie appear to be unreasonably long typically they cover. only one tournament with some exceptions With particular regard to the FIFA. agreements whose duration exceeds years the Commission cannot exclude that. there may be legitimate business reasons for FIFA to have contracts with longer duration. especially since each renewal requires FIFA to deal with a large number of applicants. 24 In your Reply you explain that even if the Targeted Parties agreements are for 4 years. i e for one tournament played every 4 years the practices of the Targeted Parties have. led de facto to long term exclusivity periods More particularly as regards the contract. concluded between FIFA and Panini which is longer than J years you consider its. length to be in contradiction with the Commission s position in the broadcasting markets. You presumably refer to the Commission s decisions concerning the collective selling of. media rights regarding Champions League the FA Premier League and Bundesliga. However you do not explain in detail how and to what extent the Commission s findings. CASE AT 39899 Licensing of IPRs for football collectibles ANTITRUST PROCEDURE Council Regulation EC 1 2003 and Commission Regulation EC 773 2004 Article 7 2 Regulation EC 773 2004 Date 15 07 2014 This text is made available for information purposes only Parts of this text have been edited to ensure that confidential information is not disclosed Those parts are replaced by a non

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