Action brought on 13 June 2017 – Qualcomm and Qualcomm Europe v Commission

(Case T-371/17)

Language of the case: English

Parties

Applicants: Qualcomm, Inc. (San Diego, California, United States), Qualcomm Europe, Inc. (San Diego) (represented by: M. Pinto de Lemos Fermiano Rato and M. Davilla, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

annul decision C(2017) 2258 final of the European Commission, of 31 March 2017, relating to a proceeding pursuant to Article 18(3) and to Article 24(1)(d) of Council Regulation No 1/2003 in Case AT.39711 – Qualcomm (predation); and

order the European Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on six pleas in law.

First plea in law, alleging that the contested decision infringes the principle of necessity

The applicants first put forward that the contested decision exceeds the narrow scope of the Commission’s investigation as that scope was defined in the Statement of Objections (“SO”), the Oral Hearing, the State-of-Play meeting, and in previous requests for information (“RFI’s”), both in terms of duration of the alleged abuse and potential theories of harm being pursued by the Commission.

They further allege that the far-reaching questions contained in the contested decision cannot be characterised as follow-up questions that would merely seek clarifications in relation to arguments made by them in the SO response and during the Oral Hearing, but as entirely new, unwarranted requests.

Further, according to the applicants, the contested decision seeks to follow-up on points that concern their responses to RFIs adopted, in some instances, more than five years ago, and pertaining to facts that occurred ten years or more ago. The applicants claim that, were the additional information now requested truly necessary for the Commission to pursue its investigation, they would legitimately have expected that he Commission would at the very least have sought such information and clarifications prior to the SO’s adoption in December 2015, and not in early 2017.

Further, according to the applicants, the contested decision requests them to perform a significant amount of work on behalf of the Commission, including processing data to be provided in a specific format.

Finally, the applicants put forward that the Commission cannot impose, under the threat of fines, a burden seemingly designed to allow the applicants to substantiate arguments made by them in the SO Response.

Second plea in law, alleging that the contested decision infringes the principle of proportionality

The applicants put forward that the information the contested decision seeks to obtain from them is unwarranted, far-reaching and extremely burdensome to collect or to compile. According to the applicants, the contested decision requires them to collect vast amounts of information that they do not collect and store in a systematic way in the ordinary course of business and undertake a very significant amount of work on the Commission’s behalf.

The applicants further put forward that the periodic penalty payments foreseen in the contested decision should the applicants fail to provide such information within specified time-limits are unwarranted, and the time-limits set are unreasonable.

Third plea in law, alleging that the contested decision lacks adequate reasoning

The applicants put forward that in a number of instances, the contested decision provides unconvincing, unclear, vague and inadequate reasons which fail to justify the Commission’s over-reaching and unnecessary requests for information. According to the applicants, in other instances, the contested decision does not provide any reasons at all. The applicants thus claim that they cannot understand the reasons why the requested information is necessary for the Commission to conduct its investigation.

Fourth plea in law, alleging that the war decision seeks to perpetrate an undue reversal burden of proof

The applicants put forward that the contested decision seeks to reverse the burden of proof and effectively “outsource” to the applicants the building of a case against them. In particular, the contested decision requests that the applicants verify, on the Commission’s behalf, the applicants’ accounting data entries, even though such data has been diligently audited by external controllers. Similarly, so the applicants state, the contested decision asks the applicants to prove that it has conducted its business in accordance with the law.

Fifth plea in law, alleging that the contested decision infringes the right to avoid self-incrimination

The applicants put forward that the contested decision requires them to provide “information” that cannot legitimately be considered as consisting of facts or documents, but which consists instead of calculations, details and codes, hypothetical prices, and analyses and interpretations of historical assumptions made several years ago.

The applicants further put forward that the contested decision requires them to demonstrate that they have proactively taken measures to comply with EU competition rules.

Sixth plea in law, alleging that the contested decision infringes the principle of sound administration

According to the applicants, the timing of adoption, content and context of the contested decision raise serious concerns of mal-administration, prosecutorial basis, and harassment and they suggest that the Commission is abusing its broad investigatory powers in an attempt to conceal its failure to establish the alleged infringement after more than seven years of investigation.

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