In February 2021, the Consumers’ Association (also known as “Which?”) applied to commence collective proceedings against Qualcomm Incorporated under section 47B of the Competition Act 1998. The applicants claimed that Qualcomm had infringed the prohibition on abuse of dominance contained in Chapter II, section 18 of the Act, and Article 102 of the Treaty on the Functioning of the European Union (TFEU) during the period before 2021.
Specifically, Consumers’ Association alleged that, as one of the largest owners of cellular standard essential patents in the world, and a leading supplier of chipsets, Qualcomm abused positions of dominance on related markets by applying exploitative and exclusionary commercial practices, requiring the payment of royalties by smartphone manufacturers, and refusing to license rival chipset manufacturers under its patents. The class as initially proposed was comprised of consumers who purchased new LTE-enabled Apple and Samsung smartphones in the United Kingdom since October 2015; in January 2022 the class definition was amended to include the estates of consumers who had died since the relevant mobile phone purchase. The applicants sought damages on behalf of the proposed class, plus interests and costs.
Qualcomm objected to the CAT’s exercise of jurisdiction over the case, but withdrew this challenge in October 2021. In July 2022, the Tribunal issued a Collective Proceedings Order, paving the way for the case to proceed on the merits.
On January 6, 2023, Consumers’ Association applied for specific disclosure regarding certain documents relating to foreign proceedings and regulatory decisions involving Qualcomm. The Tribunal was asked to decide whether Qualcomm must comply with the Consumers’ Association’s request for documents quoted from or cited in Sections 9 and 10 of the confidential version of the European Commission’s 2018 decision in Case AT.40220 involving Qualcomm. The applicants argued that the documents were relevant because, in the 2018 case, the European Commission had considered the same market definition and dominance issues, and the periods covered by the two lawsuits overlap.
Qualcomm objected to the disclosure request on three grounds:
- The conditions under which the documents were provided to Qualcomm by the Commission restrict use of the information to judicial or administrative proceedings concerning the application of TFEU Articles 101 and 102.
- The requested documents contain information relating to third parties, and as such is protected from disclosure under Case T-474/04, Pergan Hilfsstoffe für industrielle Prozesse v. Commission EU:T:2007:306 (“Pergan”).
- Because the earlier European Commission decision was annulled by the General Court due to findings of procedural irregularities, it would be unfair to disclose documents from the case.
In an unanimous decision, the Tribunal rejected Qualcomm’s objections. Firstly, the condition limiting use of the requested documents to proceedings concerning TFEU Articles 101 and 102 is met in this case, since one of the claimed infringements is Article 102 TFEU – and the fact that the case also involves a claim under the Competition Act 1998 is irrelevant.
Secondly, according to the Tribunal, the principle enunciated in Pergan protects a party from the disclosure of adverse findings of infringement or allusions to liability for infringement; but here, disclosure is sought only of contemporaneous documents such as replies to requests for information – not findings of infringement or allusions to liability.
In response to the defendant’s third objection, the Tribunal concluded that annulment of the earlier decision would not necessarily taint the documents received by Qualcomm. In the Tribunal’s view, Qualcomm will be able to make its unfairness argument at a later stage in the proceedings, and thereby affect the weight placed on particular documents.
Having rejected Qualcomm’s objections, the Tribunal ruled in favor of the applicants on January 13, 2023, refusing to grant Qualcomm’s request for permission to appeal the disclosure ruling.