In Case T‑286/09

36By application lodged at the Registry of the General Court on 22July 2009, the applicant brought an action for annulment of the contested decision, relying on nine pleas in law.

37By document lodged at the Registry on 14October 2009, AMD sought leave to intervene in the present proceedings in support of the Commission. However, on 16November 2009, AMD informed the Court that it was withdrawing its application to intervene in the case. In consequence, by order of the President of the Eighth Chamber of the General Court of 5January 2010, AMD was removed from the case as an applicant for leave to intervene.

38By document lodged at the Registry on 30October 2009, the Union fédérale des consommateurs– Que choisir (UFC– Que choisir) (‘UFC’) sought leave to intervene in the present proceedings in support of the Commission. By order of 7June 2010, the President of the Eighth Chamber of the General Court granted that leave to intervene. By letter lodged at the Registry on 22September 2010, UFC informed the Court that it would not be lodging a statement in intervention, but that it would make oral submissions at the hearing.

39By document lodged at the Registry on 2November 2009, the Association for Competitive Technology, (‘ACT’) sought leave to intervene in the present proceedings in support of Intel. By order of 7June 2010, the President of the Eighth Chamber of the General Court granted that leave to intervene. ACT submitted its statement in intervention within the prescribed period and the main parties submitted their observations on that statement.

40Intel and the Commission requested that certain confidential matters contained in the application, defence, reply, rejoinder and in their observations on the statements in intervention respectively not be communicated to the interveners UFC and ACT. They provided a joint non-confidential version of those various pleadings. Only the non-confidential version of those pleadings was communicated. The interveners raised no objections in that regard.

41Following a change in the composition of the Chambers of the General Court in September 2010, the Judge-Rapporteur was elected President of the Seventh Chamber, to which the present case was accordingly allocated.

42By decision of 18January 2012, the Court referred the case to the Seventh Chamber sitting in extended composition, pursuant to Article14(1) and Article51(1) of the Rules of Procedure of the General Court.

43The parties presented oral argument at the hearing, which was held from 3 to 6July 2012.

44By judgment of 12June 2014, Intel v Commission (T‑286/09, ‘the initial judgment’, EU:T:2014:547), the Court dismissed the action in its entirety.

45In support of its first plea in law, in relation to horizontal issues concerning the legal assessments carried out by the Commission, Intel disputed the allocation of the burden of proof and the standard of proof required, the legal characterisation of the rebates and payments granted in consideration of exclusive supply as well as the legal characterisation of the payments, which the Commission referred to as ‘naked restrictions’, made to the OEMs so that they would delay, cancel or restrict the marketing of products equipped with AMD CPUs. Intel claimed, in particular, that the Commission’s analysis of the evidence did not satisfy the required standard. Accordingly, it argued, the Commission had failed to prove that Intel’s rebate agreements were conditional upon its customers purchasing all or almost all of their x86 CPU requirements from Intel. In addition, the Commission used an AEC test to determine whether Intel’s rebates could restrict competition, but it made numerous errors in its analysis and assessment of the evidence relating to the application of that test.

46The Court held, in essence, in paragraph79 of the initial judgment, that the rebates granted to Dell, HP, NEC and Lenovo were exclusivity rebates, since they were conditional upon customers purchasing from Intel either all their x86 CPU requirements or most of their requirements. In addition, the Court stated, in paragraphs80 to 89 of the initial judgment, that the question whether such a rebate can be characterised as abusive does not depend on an analysis of the circumstances of the case aimed at establishing the capacity of that rebate to restrict competition.

47For the sake of completeness, the Court considered, in paragraphs172 to 197 of the initial judgment, that the Commission had established, to the requisite legal standard and on the basis of an analysis of the circumstances of the case, that the exclusivity rebates and payments granted by Intel to Dell, HP, NEC, Lenovo and MSH were capable of restricting competition.

48As regards the second plea in law, alleging that the Commission did not establish its territorial jurisdiction to apply Articles101 and 102 TFEU to the practices implemented in relation to Acer and Lenovo, the Court first of all considered, in paragraph244 of the initial judgment, that, in order to justify the Commission’s jurisdiction under public international law, it was sufficient to establish either the qualified effects of the practice in the European Union or that it was implemented in the European Union. It then held, in paragraph296 of the initial judgment, that the substantial, immediate and foreseeable effect that Intel’s conduct was capable of having within the European Economic Area (EEA) justified the Commission’s jurisdiction. Lastly, for the sake of completeness, the Court held, in paragraph314 of the initial judgment, that that jurisdiction was also justified on account of the implementation of the conduct in question in the territory of the European Union and the EEA.

49In support of its third plea in law, alleging that the Commission committed procedural irregularities, Intel submitted, inter alia, that its rights of defence had been infringed because of the absence of a record transcribing the meeting with D1, arguing that some of the evidence provided in that meeting could have been used as exculpatory evidence. Intel also maintained that the Commission had wrongly refused to hold a second hearing or to provide Intel with certain AMD documents which could have been relevant for Intel’s defence.

50First, the Court considered, in paragraph618 of the initial judgment, that the meeting in question did not constitute formal questioning for the purposes of Article19 of Regulation No1/2003 and that the Commission was not required to carry out such questioning. It therefore concluded, in that paragraph, that Article3 of Commission Regulation (EC) No773/2004 of 7April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L123, p.18) was not applicable, with the result that the argument alleging infringement of the formal requirements laid down in that provision was ineffective.

51Second, the Court held, in paragraphs621 and 622 of the initial judgment, that, even though the Commission had infringed the principle of sound administration by failing to draw up a document containing a brief summary of the subjects addressed at that meeting and the names of the participants, it had nevertheless remedied that initial omission by making available to Intel the non-confidential version of an internal note relating to that meeting.

52As regards the fourth plea in law, alleging errors of assessment concerning the practices relating to the various OEMs and MSH, the Court rejected all of the complaints raised by Intel in relation to Dell, HP, NEC, Lenovo, Acer and MSH in paragraphs665, 894, 1032, 1221, 1371 and 1463 of the initial judgment.

53As regards the fifth plea in law, by which Intel disputed the existence of an overall strategy aimed at foreclosing AMD’s access to the most important sales channels, the Court held, in paragraphs1551 and 1552 of the initial judgment, that the Commission had, in essence, demonstrated to the requisite legal standard that Intel had attempted to conceal the anticompetitive nature of its practices and had implemented a long-term comprehensive strategy to foreclose AMD from those sales channels.

54As regards the sixth plea in law, alleging that the Commission incorrectly applied the Guidelines on the method of setting fines imposed pursuant to Article23(2)(a) of Regulation No1/2003, the Court considered, inter alia, in paragraph1598 of the initial judgment, that neither the principle of legal certainty nor the principle that offences and punishments are to be strictly defined by law precluded the Commission from deciding to adopt and apply new guidelines on the method of setting fines, even after the infringement has been committed. In addition, the Court took the view, in that paragraph, that effective enforcement of the competition rules justifies an undertaking being required to take account of the possibility of a modification to the general competition policy of the Commission as regards fines with respect both to the method of calculation and to the level of fines.

55As regards the seventh plea in law, alleging the absence of an intentional or negligent infringement of Article102 TFEU, the Court held, in essence, in paragraphs1602 and 1603 of the initial judgment, that Intel could not have been unaware of the anticompetitive nature of its conduct and that the evidence relied on in the contested decision demonstrated to the requisite legal standard that Intel had implemented a long-term comprehensive strategy to foreclose AMD from the strategically most important sales channels and that it had attempted to conceal the anticompetitive nature of its conduct.

56As regards the eighth plea in law, concerning the allegedly disproportionate nature of the fine, the Court held, in paragraphs1614 to 1616 of the initial judgment, that the Commission’s practice in previous decisions could not serve as a legal framework for the fines imposed in competition matters and that, in any event, the decisions relied on in that respect by Intel were not relevant as regards observance of the principle of equal treatment. Furthermore, contrary to Intel’s assertions, the Court pointed out, in paragraphs1627 and 1628 of the initial judgment, that the Commission had not taken into consideration the actual impact of the infringement on the market in order to determine its gravity.

57As regards, lastly, the ninth plea in law, which sought annulment or reduction of the fine imposed on the applicant in the exercise of the Court’s unlimited jurisdiction, the Court held, inter alia, in paragraph1647 of the initial judgment, that there was nothing in the complaints, arguments or matters of law and of fact put forward by Intel from which it might be concluded that the fine which had been imposed on it was disproportionate. The Court considered, in that paragraph, that the fine was appropriate to the circumstances of the case and emphasised out that it was well below the 10% ceiling set in Article23(2) of Regulation No1/2003.

58By document lodged at the Registry of the Court of Justice on 26August 2014, the applicant appealed against the initial judgment.

59The applicant put forward six grounds in support of its appeal. By the first ground of appeal, it submitted that the General Court had erred in law by failing to examine the rebates at issue in the light of all the relevant circumstances. By the second ground of appeal, the applicant submitted that the General Court had erred in law in assessing the finding of an infringement in 2006 and 2007, inter alia as regards the assessment of the market coverage of the rebates at issue in those two years. By the third ground of appeal, the applicant argued that the General Court had erred in law as regards the legal characterisation of the exclusivity rebates which Intel concluded with HP and Lenovo. By the fourth ground of appeal, it submitted that the General Court had wrongly concluded that there was no material procedural irregularity affecting Intel’s rights of defence in the Commission’s treatment of the interview with D1. By the fifth ground of appeal, Intel argued that the General Court had misapplied the tests in relation to the Commission’s jurisdiction over the agreements concluded between Intel and Lenovo in 2006 and 2007. Lastly, by the sixth ground of appeal, the applicant asked the Court of Justice to annul or to reduce substantially the fine imposed on it, having regard to the principle of proportionality and the principle that the Guidelines on the method of setting fines imposed pursuant to Article23(2)(a) of Regulation No1/2003 should not be applied retroactively.

60The Commission contended that the appeal should be dismissed. ACT argued that the appeal should be upheld in its entirety.

61By its judgment of 6September 2017, Intel v Commission (C‑413/14P, ‘the judgment on the appeal’, EU:C:2017:632), as rectified, the Court of Justice set aside the initial judgment and referred the case back to the General Court.