On January 30, 2020, the Commission fined NBCUniversal and other companies belonging to the Comcast Corporation €14.3 million for breaching Article 101 TFEU by imposing territorial restrictions on cross-border and online sales of movie merchandising products within the EEA.[1] The Commission granted NBCUniversal a 30% fine reduction on account of its cooperation.
The NBCUniversal decision is the Commission’s third antitrust decision in the merchandise sector in less than a year,[2] and concludes a series of Commission investigations against licensors of intellectual property rights that resulted from its e-commerce sector inquiry that concluded in May 2017.[3] NBCUniversal is a U.S. operator of TV networks and a producer of popular movies and TV series, including Jurassic Park, the Minions, Shrek, and many others.
NBCUniversal owns the intellectual property rights to the characters in its movies, including the themes, images, and logos. It grants non-exclusive licenses to these intellectual property rights to merchandise suppliers who produce and sell toys, mugs, bags, and other merchandise goods in the EEA.
Similar to Nike and Sanrio,[4] NBCUniversal used direct and indirect measures to restrict intra-EEA trade, effectively undermining the EU single market. These measures included direct restrictions of (i) out-of-territory sales; (ii) sales beyond allocated customer groups; and (iii) online sales by licensees. Additionally, NBCUniversal obliged licensees to pass on these restrictions to their customers, and encouraged them to comply with these sales restrictions, through measures such as regular audits and non-renewal of contracts.
The Commission’s fines in cases resulting from its e-commerce sector inquiry now total €184 million. This amount reflects the seriousness of the infringements found, which constitute by-object infringements of Article 101 TFEU. The 30% fine reduction granted to NBCUniversal for cooperation, acknowledgement of the infringement, and for waiving certain procedural rights is the lowest reduction granted in any of the Commission’s post-sector inquiry decisions (Nike and Sanrio were granted 40% reduction, as were Asus, Denon & Marantz, and Philipps; Pioneer and Guess had received a reduction of 50%), as shown in Figure [2] below.
Figure [2]: Overview of Commission antitrust decisions in cases
initiated following the final report in the e-commerce sector inquiry
| Decision (date) | Infringement(s) | Duration (years) | Fine (amount) | Fine (reduction) |
| NBCUniversal Jan. 30, 2020 |
Restriction of cross-border sales | 6.5 | €14.3 million | -30% |
| Sanrio July 9, 2019 |
Restriction of cross-border sales | 11 | €6.2 million | -40% |
| Nike March 25, 2019 |
Restriction of cross-border sales | 13.3 | €12.5 million | -40% |
| Guess Dec. 17, 2018 |
Selective distribution | 3.8 | €39.8 million | -50% |
| Asus July 24, 2018 |
RPM50[5] | 1.8 and 3.3 | €63.5 million | -40% |
| Denon & Marantz July 24, 2018 |
RPM | 3.8 and 3.7 | €7.7 million | -40% |
| Philips July 24, 2018 |
RPM | 2 | €29.8 million | -40% |
| Pioneer July 24, 2018 |
RPM Restriction of cross-border sales |
2.9 | €10.2 million | -50% |
Source: European Commission
[1] Film merchandise (Case COMP/AT.40433), decision not yet published. See Commission Press Release IP/20/157.
[2] Summaries of the Commission’s decisions imposing fines against Nike and Sanrio were previously published in the March 2019 and July 2019 editions of our EU Competition Law Newsletter.
[3] See Final Report on the E-commerce Sector Inquiry, COM/2017/0229, May 10, 2017; and Commission Sector Inquiry into E-commerce, available at: https:// ec.europa.eu/competition/antitrust/sector_inquiries_e_commerce.html.
[4] See Character merchandise (Case COMP/AT.40432), and Ancillary sports merchandise (Case COMP/AT.40436).
[5] Resale price maintenance.