In Case T‑286/09

533In so far as, in the judgment on the appeal, the Court of Justice set aside the initial judgment and reserved the costs, it is for the General Court, in accordance with Article219 of the Rules of Procedure, to decide, in the present judgment, on all the costs relating to the proceedings brought before it, namely the proceedings in Cases T‑286/09 and T‑286/09RENV, and on the costs relating to the appeal proceedings, namely the proceedings in Case C‑413/14P.

534Under Article134 of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Where there is more than one unsuccessful party, the Court is to decide how the costs are to be shared. Where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.

535Under Article138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in Article138(1) and (2) to bear his or her own costs.

536Since the Commission has been unsuccessful in part, it must be ordered to pay, in addition to its own costs relating to the proceedings before the General Court in Cases T‑286/09 and T‑286/09RENV and to the appeal proceedings before the Court of Justice in Case C‑413/14P, two thirds of the costs incurred by the applicant and by ACT in those proceedings, while the applicant and ACT are each to bear one third of their own costs.

537UFC is to bear its own costs relating to the proceedings brought before the General Court in Cases T‑286/09 and T‑286/09RENV and to the appeal proceedings before the Court of Justice in Case C‑413/14P.

On those grounds,

THE GENERAL COURT (Fourth Chamber, Extended Composition)

hereby:

1.Annuls Article1(a) to (e) and Article2 of Commission Decision C(2009) 3726 final of 13May 2009 relating to a proceeding under Article [102 TFEU] and Article54 of the EEA Agreement (Case COMP/C‑3/37.990– Intel);

2.Annuls Article3 of Decision C(2009) 3726 final solely in so far as it concerns Article1(a) to (e) of that decision;

3.Dismisses the action as to the remainder;

4.Orders the European Commission to pay, in addition to its own costs relating to the proceedings before the General Court in Cases T‑286/09 and T‑286/09RENV and to the appeal proceedings before the Court of Justice in Case C‑413/14P, two thirds of the costs incurred by Intel Corporation, Inc., and by Association for Competitive Technology, Inc., in those proceedings, while Intel Corporation and Association for Competitive Technology are each to bear one third of their own costs;

5.Orders Union fédérale des consommateurs– Que choisir (UFC– Que choisir) to bear its own costs relating to the proceedings brought before the General Court in Cases T‑286/09 and T‑286/09RENV and to the appeal proceedings before the Court of Justice in Case C‑413/14P.

Delivered in open court in Luxembourg on 26January 2022.

Table of contents

Background to the dispute

Administrative procedure

The contested decision

Relevant market

Dominance

Abuse and fine

Operative Part

Procedure before the General Court and the Court of Justice

Procedure and forms of order sought following the referral back

Law

Arguments of the parties relating to the subject matter of the proceedings following the referral back

The Commission’s arguments concerning the admissibility of certain arguments contained in the main observations of the applicant and ACT

Substance

The heads of claim for annulment of the contested decision

I. The method defined by the Court of Justice for assessing whether a system of rebates has the capacity to restrict competition

II. The principles arising from the judgment on the appeal

III. The substance of the arguments raised by the applicant and ACT

A. The argument that the contested decision is founded on an incorrect legal analysis

B. The argument that the contested decision must be annulled on the ground that it contains an AEC analysis which is vitiated by numerous errors

1. The scope of the Court’s review

2. General considerations concerning the AEC analysis

3. The burden of proof and the standard of proof required

4. The substance of the arguments that the contested decision is vitiated by numerous errors in the AEC test

(a) General arguments concerning the alleged errors in the AEC test applied to Dell

(1) The assessment of the contestable share

(i) The arguments concerning the principle of legal certainty

(ii) The assessment of the contestable share as 7.1%

(iii) The applicant’s claim regarding the initial part of the relevant period, from December 2002 to October 2003

(2) The alternative method of calculation

(3) The reinforcing factors

(4) Conclusion on the AEC test for the rebates granted to Dell

(b) The alleged errors in the AEC test applied to HP

(1) The period examined by the AEC test

(2) The alleged reinforcing factors

(c) The alleged errors in the AEC test applied to NEC

(1) The calculation of the conditional portion of the rebates

(i) The evidence taken into account in the contested decision

(ii) The evidence adduced by Intel

(2) Use of the fourth quarter of 2002 as a reference

(d) The alleged errors in the AEC test applied to Lenovo

(1) General overview of the part of the contested decision devoted to Lenovo

(2) The conditional portion of the rebates

(e) The alleged errors in the AEC test applied to MSH

(f) Conclusions on the AEC test

C. The argument that the contested decision did not properly analyse and take account of the criteria referred to in paragraph139 of the judgment on the appeal

1. The coverage rate

2. Duration and amount of the rebates

3. Conclusions on taking account of the criteria mentioned in paragraph139 of the judgment on the appeal

D. Conclusion on the application for annulment of the contested decision

The head of claim seeking the annulment of the fine or a reduction in the amount of the fine

Costs

*Language of the case: English.

1Confidential information omitted.