Judgments nº T-286/09 of The General Court, June 12, 2014

• Resolution Date: June 12, 2014
• Issuing Organization: The General Court
• Decision Number: T-286/09

(Competition — Abuse of dominant position — Microprocessors market — Decision finding an infringement of Article 82 EC and Article 54 of the EEA Agreement — Loyalty rebates — ‘Naked’ restrictions — Classification as abuse — As-efficient-competitor analysis — Commission’s international jurisdiction — Obligation on the Commission to investigate — Limits — Rights of the defence — Principle of sound administration — Overall strategy — Fines — Single and continuous infringement — 2006 Guidelines on the method of setting fines)

In Case T‑286/09,

Intel Corp., established in Wilmington, Delaware (United States), represented initially by K. Bacon, Barrister, M. Hoskins, N. Green QC, S. Singla, Barrister, I. Forrester QC, A. Parr, R. Mackenzie, Solicitors, and D. Piccinin, Barrister, and subsequently by I. Forrester, A. Parr, R. Mackenzie and D. Piccinin,

applicant,

supported by

Association for Competitive Technology, Inc., established in Washington, DC (United States), represented by J.-F. Bellis, lawyer,

intervener,

v

European Commission, represented by T. Christoforou, V. Di Bucci, N. Khan and M. Kellerbauer, acting as Agents,

defendant,

supported by

Union fédérale des consommateurs — Que choisir (UFC — Que choisir), established in Paris (France), represented initially by J. Franck, and subsequently by E. Nasry, lawyers,

intervener,

ACTION for annulment of Commission Decision C(2009) 3726 final of 13 May 2009 relating to a proceeding under Article 82 [EC] and Article 54 of the EEA Agreement (Case COMP/C‑3/37.990 — Intel) or, alternatively, annulment or reduction of the fine imposed on the applicant.

THE GENERAL COURT (Seventh Chamber, Extended Composition),

composed of A. Dittrich (Rapporteur), President, I. Wiszniewska-Białecka, M. Prek, J. Schwarcz and M. Kancheva, Judges,

Registrar: E. Coulon and J. Weychert, Administrator,

having regard to the written procedure and further to the hearing on 3 to 6 July 2012,

gives the following

Judgment

Background to the dispute

1 The applicant, Intel Corp., is a US-based company that designs, develops, manufactures, and markets central processing units (‘CPUs’), ‘chipsets’, and other semiconductor components, as well as platform solutions for data processing and communications devices.

2 At the end of 2008, Intel employed about 94 100 people worldwide. In 2007, Intel had net revenues of USD 38 334 million and a net income of USD 6 976 million. In 2008, Intel had net revenues of USD 37 586 million and a net income of USD 5 292 million.

I – Administrative procedure

3 On 18 October 2000, Advanced Micro Devices (‘AMD’) submitted a formal complaint to the Commission of the European Communities under Article 3 of Council Regulation (EEC) No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition, 1959–1962(I), p. 87), which it further supplemented by putting forward new facts and allegations, in the context of a supplementary complaint of 26 November 2003.

4 In May 2004, the Commission launched a round of investigations relating to elements in AMD’s supplementary complaint. Within the framework of that investigation, in July 2005, the Commission, assisted by several national competition authorities, carried out on-the-spot inspections under Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) at four Intel locations, in the United Kingdom, Germany, Italy and Spain, as well as at the locations of several Intel customers, in France, Germany, Italy, Spain and the United Kingdom.

5 On 17 July 2006, AMD filed a complaint with the Bundeskartellamt (German Federal Cartel Office), in which it claimed that Intel had engaged inter alia in exclusionary marketing arrangements with Media-Saturn-Holding GmbH (‘MSH’), a European retailer of microelectronic devices and the largest desktop computer distributor in Europe. The Bundeskartellamt exchanged information with the Commission on this subject, pursuant to Article 12 of Regulation No 1/2003.

6 On 23 August 2006, the Commission held a meeting with Mr D1 [confidential] (2) of Dell Inc., a customer of Intel. The Commission did not place the indicative list of topics for the meeting (‘the indicative list of topics’) on the case file and did not take minutes of it. A member of the team responsible for the file at the Commission drafted a note which was described as internal by the Commission (‘the internal note’) concerning that meeting. On 19 December 2008, the Commission provided the applicant with a non-confidential version of that note.

7 On 26 July 2007, the Commission notified to the applicant a statement of objections (‘the Statement of Objections of 2007’) concerning its conduct vis-à-vis five major original equipment manufacturers (‘OEMs’), namely Dell, Hewlett-Packard Company (HP), Acer Inc., NEC Corp. and International Business Machines Corp. (IBM). Intel replied to that statement of objections on 7 January 2008, and an oral hearing was held on 11 and 12 March 2008. Access to the file was granted three times to Intel, namely on 31 July 2007, 23 July 2008 and 19 December 2008.

8 The Commission undertook several investigative measures relating to AMD’s allegations, including on-the-spot inspections at the sites of several computer retailers and of Intel in February 2008. In addition, several written requests for information were addressed, pursuant to Article 18 of Regulation No 1/2003, to a number of major OEMs.

9 On 17 July 2008, the Commission issued to the applicant a supplementary statement of objections concerning its conduct vis-à-vis MSH. That statement of objections (‘the Supplementary Statement of Objections of 2008’) also covered Intel’s conduct vis-à-vis Lenovo Group Ltd (‘Lenovo’) and included new evidence on Intel’s conduct vis-à-vis some of the OEMs covered by the Statement of Objections of 2007, which had been obtained by the Commission after the publication of the latter.

10 The Commission originally set Intel a deadline of eight weeks to submit its reply to the Supplementary Statement of Objections of 2008. On 15 September 2008, that deadline was extended to 17 October 2008 by the Hearing Officer.

11 Intel did not reply to the Supplementary Statement of Objections of 2008 within the prescribed period. However, on 10 October 2008, Intel lodged an application with the General Court, registered under reference T‑457/08, requesting the Court, first, to annul two decisions of the Commission relating to the setting of the period for replying to the Supplementary Statement of Objections of 2008 and to the Commission’s refusal to obtain several categories of documents emanating inter alia from the file of the private litigation between Intel and AMD in the US State of Delaware and, second, to extend the deadline for lodging its reply to the Supplementary Statement of Objections of 2008 in order to have a period of 30 days from the day on which it obtained access to the relevant documents.

12 Intel further lodged an application for interim measures, registered under reference T‑457/08 R, by which it sought to obtain the suspension of the Commission’s procedure pending the judgment on its substantive application, as well as the suspension of the period set for lodging its reply to the Supplementary Statement of Objections of 2008 and, in the alternative, that it be allowed a period of 30 days from the date of that judgment in order to reply to the Supplementary Statement of Objections of 2008.

13 On 19 December 2008, the Commission sent Intel a letter drawing its attention to a number of specific items of evidence which the Commission intended to use in a potential final Decision (‘the Letter of Facts’). Intel did not reply to that letter by the deadline of 23 January 2009.

14 On 27 January 2009, the President of the Court dismissed the application for interim measures (order of the President of the Court of 27 January 2009 in Case T‑457/08 R Intel v Commission, not published in the ECR). Following that order, on 29 January 2009, Intel proposed to file its reply to the Supplementary Statement of Objections of 2008 and to the Letter of Facts within 30 days of the order of the President of the Court.

15 On 2 February 2009, the Commission informed Intel by letter that the Commission services had decided not to grant an extension of the deadlines to reply to the Supplementary Statement of Objections of 2008 or to the Letter of Facts. The letter of 2 February 2009 also stated that the Commission services were nevertheless willing to consider the possible relevance of belated written submissions, provided that Intel served such submissions by 5 February 2009. Finally, the Commission took the view that it was not obliged to grant a request for a hearing lodged out of time and that its services considered that the proper conduct of the administrative procedure did not necessitate an oral hearing.

16 On 3 February 2009, Intel withdrew its action in the main proceedings in Case T‑457/08 and the case was removed from the register by order of the President of the Fifth Chamber of the Court of 24 March 2009.

17 On 5 February 2009, Intel served a written submission including observations relating to the Supplementary Statement of Objections of 2008 and the Letter of Facts, which it classed as a ‘reply to the Supplementary Statement of Objections [of 2008]’ and a ‘reply to the [Letter of Facts]’.

18 On 10 February 2009, Intel wrote to the Hearing Officer and asked to be granted an oral hearing in relation to the Supplementary Statement of Objections of 2008. The Hearing Officer rejected the request by letter of 17 February 2009.

19 On 13 May 2009, the Commission adopted Decision C(2009) 3726 final relating to a proceeding under Article 82 [EC] and Article 54 of the EEA Agreement (Case COMP/C‑3/37.990 — Intel) (‘the contested decision’), a summary...