The European Commission invites comments on commitments offered by Corning to address competition concerns over its alleged exclusive dealing in relation to the supply of Alkali-aluminosilicate glass ('Alkali-AS Glass'), a special type of glass mainly used as cover glass in handheld electronic devices.
The Commission's investigation
Corning, based in the US, is a global producer of glass for many industrial and consumer applications. It produces Alkali-AS Glass, a particularly break-resistant glass mainly used as cover for displays of portable electronic devices such as mobile phones, tablets, or smartwatches. Corning markets Alkali-AS Glass mainly under the 'Gorilla Glass' brand. Alkali-AS Glass has two commercially relevant subtypes, lithium aluminosilicate glass ('LAS Glass') and sodium aluminosilicate glass ('NAS Glass').
On 6 November 2024 , the Commission opened a formal investigation over concerns that Corning may have distorted competition in the market for Alkali-AS Glass by concluding anticompetitive exclusive supply agreements with mobile phone manufacturers (Original Equipment Manufacturers or 'OEMs') and with companies that process raw glass ('finishers').
The Commission preliminarily found that Corning is dominant on the worldwide market for Alkali-AS Glass. According to the Commission's preliminary assessment, Corning has abused its dominant position in breach of Article 102 of the Treaty on the Functioning of the European Union ('TFEU') by excluding rival Alkali-AS Glass producers from large segments of the market, thereby reducing customer choice, increasing prices, and stifling innovation to the detriment of consumers worldwide.
The proposed commitments
To address the Commission's competition concerns, Corning has offered the following commitments:
- To waive all exclusive dealing clauses in all its current agreements with OEMs and finishers for the supply of Alkali-AS Glass, and not to use such clauses or others with the same or a similar effect in future agreements worldwide.
- When it comes to OEMs' demand for Alkali-AS Glass intended for devices used in the European Economic Area ('EEA demand'), not to require OEMs to purchase or cause their supply chain to purchase any quantity of Alkali-AS Glass from Corning, and not to offer OEMs any price advantages conditional on such requirements.
- When it comes to both (i) OEMs' non-EEA combined demand for Alkali-AS Glass and transparent glass ceramics ('Clear Glass Ceramics'), and (ii) OEMs' total demand for either LAS Glass or Clear Glass Ceramics, not to require OEMs to purchase or cause their supply chain to purchase more than 50% of their respective demand from Corning. In addition, Corning will not offer OEMs any price advantages conditional on such requirements.
- Not to require finishers to purchase more than 50% of their combined demand for NAS Glass, LAS Glass, and Clear Glass Ceramics from Corning, nor to condition price advantages on such purchasing requirements. In addition, Corning will not require finishers in any other way to concentrate more than 50% of this combined demand with Corning. This means that finishers are free to decide the quantity of the different cover materials (NAS Glass, LAS Glass or Clear Glass Ceramics) that they want to purchase from Corning to comply with this overall cap.
- When it comes to the enforcement of Corning's patents related to break-resistant cover glass, to base any claim only on patent infringement, and not on breach of contract. In addition, Corning will not use any contractual mechanisms (e.g. penalties) to reinforce its patent claims.
- To deliver a market communication to key stakeholders (OEMs and finishers) explaining the content of the above commitments in English and Chinese Mandarin.
These commitments offered by Corning are applicable worldwide and would remain in force for a period of nine years. Their implementation will be monitored by a monitoring trustee who will report to the Commission for the entire period.
The Commission invites all interested parties to submit their views within six weeks from the publication of a summary of the proposed commitments in the EU's Official Journal . The full text of the commitments, the Notice to stakeholders, and the list of addressees of that notice will be available on the Commission's competition website .
Background
Article 102 TFEU , which can also be applied by the national competition authorities, prohibits the abuse of a dominant position that may affect trade within the EU and prevent or restrict competition. The implementation of this provision is defined in Regulation 1/2003 .
On 6 November 2024 , the Commission opened a formal investigation to assess whether Corning may have abused its dominant position on the worldwide market for Alkali-AS Glass. On the same day, in parallel to the opening of proceedings, the Commission adopted a Preliminary Assessment summarising the main facts of the case and identifying its preliminary competition concerns.
Article 9(1) of Regulation 1/2003 enables companies investigated by the Commission to offer commitments in order to meet the Commission's concerns and empowers the Commission to make such commitments binding on the companies. Article 27(4) of Regulation 1/2003 requires that before adopting such decision the Commission shall provide interested third parties with an opportunity to comment on the offered commitments.
If the market test indicates that the commitments are a satisfactory way of addressing the Commission's competition concerns, the Commission may adopt a decision making the commitments legally binding on Corning. Such a decision would not conclude that there is an infringement of EU antitrust rules but would legally bind Corning to respect the commitments it has offered.
If Corning does not honour such commitments, the Commission could impose a fine of up to 10% of the company's worldwide turnover, without having to find an infringement of the EU antitrust rules.
