Between 1995 and 1996, the European Commission launched two separate investigations into the distribution of Nintendo’s video game cartridges and consoles. The first investigation commenced after the Commission published the preliminary findings of its inquiry into the video game sector. The second was launched in response to a complaint that Nintendo was hindering the parallel trade of its products and was operating a resale price maintenance policy.

At the conclusion of these investigations, the Commission fined Nintendo EUR 149 million for its participation in a “complex of agreements and concerted practices” in the market for video game cartridges and consoles that had the object and effect of restricting parallel imports. Nintendo appealed this decision to the Court of First Instance (CFI), seeking to annul or reduce the fine.

The Commission’s fining guidelines allow it to reduce a fine if a company cooperates with its investigation to a greater extent than that required by law. Nintendo argued that it was entitled to receive a reduction greater than the 25 per cent of the fine granted by the Commission because its cooperation came earlier and was more extensive than that provided by another company, John Menzies Distributors, which was granted a 40 per cent reduction. The Court concluded that the documents in its possession did not show that Nintendo’s cooperation came at an earlier stage in the procedure than the cooperation given by John Menzies Distributors. It did, however, find that much of the information given to the Commission by Nintendo was of equal value to that provided by that company. The Court concluded that the cooperation given by Nintendo was comparable with John Menzies Distributors’ and Nintendo was therefore entitled to receive the same 40 per cent reduction of its fine.