Opinion of Advocate General Medina delivered on 18 January 2024.

• Jurisdiction: European Union
• Celex Number: 62022CC0240
• ECLI: ECLI:EU:C:2024:65
• Date: 18 January 2024
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 18 January 2024(1)

Case C‑240/22 P

European Commission

v

Intel Corporation Inc.

(Appeal – Competition – Abuse of dominant position – Microprocessors market – Decision finding an infringement of Article 102 TFEU and Article 54 of the EEA Agreement – Loyalty rebates – Characterisation as abuse – As-efficient-competitor analysis – Overall strategy – Single and continuous infringement – Complex economic assessment – Extrapolation of economic data – Rebates awarded in the form of non-cash advantages)

I. Introduction

1. This Opinion concerns the appeal brought by the European Commission seeking to have the judgment of 26 January 2022, Intel Corporation v Commission (T‑286/09 RENV), (2) set aside. That judgment followed the judgment of the Court of Justice of 6 September 2017, Intel v Commission (C‑413/14 P), (3) which, itself, both annulled the judgment of 12 June 2014, Intel v Commission(T‑286/09) (4) and referred the case back to the General Court.

2. By the judgment under appeal, the General Court concluded that Decision C(2009) 3726 final relating to a proceeding under Article [102 TFEU] and Article 54 of the EEA Agreement (5) should be annulled in part.

3. More specifically, the General Court found that the Commission was not in a position to determine that the exclusivity rebates and payments granted by Intel to a number of original equipment manufacturers (‘OEMs’) and to a European distributor of desktop computers were capable of having or likely to have anticompetitive effects and that they therefore constituted an infringement of Article 102 TFEU. (6) According to the General Court, that was due to the errors vitiating the contested decision regarding, first, the assessment carried out by the Commission of the as-efficient-competitor test (‘AEC test’) and regarding, second, the assessment of the share of the market covered by Intel’s practice and its duration. (7)

4. The Commission disputes the approach taken by the General Court and submits six grounds in support of its appeal. By those grounds of appeal, the Commission alleges, in essence, that the General Court failed to make an overall assessment of the capability of Intel’s practices to foreclose competition in the light of all the relevant circumstances, that it distorted evidence and made a number of errors of law in relation to the standard of review, misinterpreted the AEC test as applied in the contested decision, and infringed the Commission’s rights of defence.

5. The Court has requested that two specific legal issues be examined, which concern the fourth and fifth grounds of appeal. Both grounds dispute the General Court’s assessment of the AEC test in relation to two of the OEMs benefiting from Intel’s practice. The present Opinion will accordingly focus on those grounds of appeal and, in particular, on the issues raised by them, relating, first, to the Commission’s margin of discretion when applying the AEC test to a specific conduct and, second, to the assessment of rebates awarded in the form of non-cash advantages.

II. Facts and procedure

6. For the purposes of the present Opinion, the facts and procedure of the proceedings may be summarised as follows. (8)

A. Background to the dispute and administrative procedure

7. Intel Corporation (‘Intel’) is a company based in the United States which 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.

8. Following a formal complaint submitted on 18 October 2000 by Advanced Micro Devices, Inc. (‘AMD’), supplemented on 26 November 2003, the Commission launched investigations pursuant to Council Regulation (EC) No 1/2003. (9)

9. On 26 July 2007, the Commission notified to Intel a statement of objections concerning its conduct vis-à-vis five major OEMs – namely Dell, Hewlett-Packard Company (‘HP’), Acer Inc. (‘Acer’), NEC Corp. (‘NEC’) and International Business Machines Corp. (‘IBM’).

10. On 17 July 2008, the Commission issued to Intel a supplementary statement of objections concerning its conduct vis-à-vis MSH, a European distributor of microelectronic devices and the leading European desktop computer distributor. That statement of objections also covered Intel’s conduct vis-à-vis Lenovo Group Ltd (‘Lenovo’) and included new evidence relating to Intel’s conduct vis-à-vis certain of the OEMs mentioned above.

11. After various procedural steps, the Commission adopted, on 13 May 2009, the contested decision, a summary of which appears in the Official Journal of the European Union (OJ 2009 C 227, p. 13).

B. The contested decision

12. According to the contested decision, Intel committed a single and continuous infringement of Article 102 TFEU and of Article 54 of the Agreement on the European Economic Area (EEA), from October 2002 until December 2007, by implementing a strategy aimed at foreclosing a competitor, AMD, from the market for x86 CPU microprocessors (‘x86 CPUs’).

1. Relevant market

13. The goods at issue in the contested decision are CPUs – namely x86 CPUs – which are key components of any computer, both in terms of overall performance and cost of the system. CPUs are often referred to as a computer’s ‘brain’ and the process for their manufacture requires expensive high-tech facilities. Prior to 2000, a number of manufacturers of x86 CPUs were present on the market. However, most of those manufacturers have since exited the market. The contested decision states that Intel and AMD have been essentially the only two companies still manufacturing x86 CPUs.

14. The geographical market was defined as worldwide.

2. Dominance

15. On the basis, first, of a market share in excess of or around 70% held by Intel between 1997 and 2007 and, second, the significant barriers to entry and expansion in the relevant market – resulting from sunk investments in research and development, intellectual property and the necessary production facilities – the Commission concluded that, at least in the period covered by the contested decision, that is to say, from October 2002 to December 2007, Intel held a dominant position in that market.

3. Types of conduct

16. The contested decision described two types of Intel conduct vis-à-vis its trading partners, namely conditional rebates and naked restrictions.

17. In the first place, according to the contested decision, Intel granted four OEMs – namely Dell, Lenovo, HP and NEC – rebates which were conditioned on those OEMs purchasing all or almost all of their x86 CPUs from Intel. Similarly, Intel awarded payments to MSH, which were conditioned on MSH selling exclusively computers containing Intel’s x86 CPUs.

18. The contested decision concluded that the conditional rebates granted by Intel to the OEMs constituted fidelity rebates. With regard to MSH, the contested decision established that the economic mechanism of Intel’s conditional payments to these payments was equivalent to that of the conditional rebates granted to the OEMs.

19. The contested decision also conducted an economic analysis of the capability of the rebates to foreclose a hypothetical competitor as efficient as Intel, albeit not dominant. More precisely, the analysis established at what price a competitor as efficient as Intel would have had to offer CPUs in order to compensate an OEM for the loss of an Intel rebate. The same kind of analysis was conducted for the Intel payments to MSH.

20. The evidence gathered by the Commission led it to the conclusion that Intel’s conditional rebates and payments induced the loyalty of the key OEMs and of MSH. The effects of those practices were complementary, in that they significantly diminished competitors’ ability to compete on the merits of their x86 CPUs. Intel’s anticompetitive conduct thereby resulted in a reduction of consumer choice and in lower incentives to innovate.

21. In the second place, with regard to naked restrictions, the Commission stated that Intel awarded three OEMs – namely HP, Acer and Lenovo – payments which were conditioned on those OEMs postponing or cancelling the launch of AMD CPU-based products and/or placing restrictions on the distribution of those products. The contested decision concluded that Intel’s conduct also directly harmed competition, and did not constitute normal competition on the merits.

4. Abuse and fine

22. The Commission concluded in the contested decision that, in each instance, Intel’s conduct vis-à-vis the OEMs and MSH constituted an abuse under Article 102 TFEU, but that each of those individual abuses was also part of a single strategy aimed at foreclosing AMD, Intel’s only significant competitor, from the market for x86 CPUs. Those individual abuses were therefore part of a single and continuous infringement of Article 102 TFEU, committed from October 2002 until December 2007. (10)

23. By applying the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2), the Commission imposed on Intel a fine of EUR 1.06 billion. (11)

C. The initial judgment

24. On 22 July 2009, Intel brought an action for annulment of the contested decision. The Association for Competitive Technology (‘ACT’) was granted leave to intervene in those proceedings in support of Intel.

25. By the initial judgment, delivered on 12 June 2014, the General Court dismissed the action in its entirety.

26. In its judgment, the General Court held, in essence, that the rebates granted to the OEMs were exclusivity rebates, since they were conditional upon customers purchasing from Intel either all their x86 CPU requirement or most of their requirements. In addition, the General Court explained that the question whether such rebates could be characterised as abusive did not depend on an analysis of the circumstances of the case aimed at...