The General Court of the European Union has annulled the European Commission’s decision to impose a fine of €1.06 billion on x86 microprocessor manufacturer Intel in May 2009 for abuse of a dominant position between October 2002 and December 2007, without however fully exonerating it from anti-competitive practices under the TFEU Treaty (Article 102), in a judgment handed down on Wednesday 26 January (Case T-286/09).
In September 2017, the Court of Justice of the European Union annulled the judgment of the General Court of June 2014 upholding the Commission’s original decision (see EUROPE 11099/44) and referred the case back to the Commission (see EUROPE 11856/3).
According to the Court of Justice, the General Court should have considered all of Intel’s arguments criticising the Commission’s ‘efficient competitor test’ for analysing the circumstances of the case and determining whether the conditional rebates Intel granted to OEMs Dell, Lenovo, Hewlett-Packard, and NEC, as well as to the IT distributor Media-Saturn-Holding, restricted competition.
In its judgment, the General Court finds that the Commission has not established to the requisite legal standard the capacity of each of the contested rebates to produce a foreclosure effect, in view of Intel’s arguments regarding the Commission’s assessment of the relevant analytical criteria.
In particular, it considers that the foreclosure effect of the conditional rebates granted to Dell and HP has not been demonstrated for the entire infringement period. With regard to the rebates granted to the NEC group, the General Court found two errors in the Commission’s analysis, one affecting the value of the conditional rebates, the other relating to the insufficiently justified extrapolation of results for a single quarter to the entire infringement period. It also found insufficient evidence as to the ability of the rebates granted to Lenovo to produce a foreclosure effect, due to errors made by the Commission in the assessment of the relevant benefits in kind.
Finally, the General Court will examine whether the contested decision has taken due account of all the criteria for establishing the capacity of pricing practices to produce a predatory effect, in accordance with the case-law of the Court of Justice. However, it finds that the Commission did not properly examine the criterion relating to the market coverage of the contested practice, nor did it carry out a proper analysis of the duration of the discounts.
The Commission’s efficient competitor test analysis is therefore incomplete and does not establish to the requisite legal standard that the contested rebates had anti-competitive effects. Consequently, the General Court annuls the Commission’s 2009 decision.
On the other hand, the General Court maintains that the undisguised restrictions in the form of payments to computer manufacturers to delay or prevent the launch of products incorporating processors from the competitor AMD and to distributors to restrict the distribution of those products are illegal under European competition law. However, as it was not able to identify the amount of the fine relating solely to the undisguised restrictions, it cancelled the entire fine of €1.06 billion initially imposed on Intel.
See the judgment: https://bit.ly/3fZL7ey (Original version in French by Mathieu Bion)