In Case T‑286/09

288In recital413 of the contested decision, the Commission stated that HP and the applicant concluded, for the period between November 2002 and May 2005, the HPA agreements concerning corporate desktop computers. In the same recital, the Commission observed that those agreements included an unwritten condition for the grant of rebates to HP (‘the HPA rebates’), namely that HP would source from the applicant at least 95% of its x86 CPU requirements for its corporate desktop computers (‘the quasi-exclusivity condition’). In recital1406 of the contested decision, the Commission concluded on the basis of the AEC test that those HPA rebates were capable of having anticompetitive foreclosure effects.

289As regards, more specifically, the periods covered by the agreements which resulted in the HPA rebates, the Commission stated in recitals338, 341 and 1296 of the contested decision that the first of those agreements (‘the HPA1 agreement’) had been concluded following the merger in May 2002 of HP with Compaq and covered a period from November 2002 to May 2004. As regards the second of the HPA agreements, the Commission noted in recitals342 and 343 of the contested decision that it covered a period from June 2004 to May 2005.

290The applicant disputes the Commission’s conclusion that the HPA rebates were capable of having anticompetitive foreclosure effects and submits that, when applied correctly, the AEC test shows that those rebates were not capable of foreclosing an as-efficient competitor.

291In essence, the applicant claims that the contested decision contains four errors, concerning (i) the contestable share, (ii) the amount of the conditional portion of the rebates, (iii) the infringement period examined, and (iv) the reinforcing factors taken into consideration. The applicant puts forward a fifth argument to the effect that the Commission erred in its assessment of its AAC.

(1)The period examined by the AEC test

292The applicant maintains that the Commission did not carry out the AEC test for the entire period covered by the contested decision. The contested decision fails to offer an AEC test in respect of the first 11months of the period concerned, namely from November 2002 to the third quarter of HP’s 2003 tax year. In addition, although Table 35 in recital1337 of the contested decision (‘Table 35’) presents a ‘robustness’ analysis which allegedly examines the entirety of the HPA1 agreement, that analysis is based, in the applicant’s view, on incomplete data. The Commission, it argues, made a ‘manifest error of assessment’ in stating that the applicant failed the AEC test for the period covered by the HPA1 agreement, while acknowledging that it was possible, in the absence of consistent data, that the reference period ‘may not fully coincide with the actual contractual duration’ of the HPA1 agreement.

293Furthermore, the applicant submits that the Commission’s assertion in recital1014 of the contested decision that the AEC test requires an examination of the contestable share of an OEM’s supplies over a period of at most one year is inconsistent with the analysis in Table 35, which was conducted over a longer period, namely over one and a half years.

294The Commission contends that the contested decision does contain an AEC analysis for the entire period covered by the HPA1 agreement, which runs from November 2002 to May 2004, and that Annex B.31 demonstrates how that is a relevant period.

295Next, the Commission maintains that the applicant failed to raise that argument at any point during the administrative procedure, even though the same reference periods were used for all the calculations regarding HP. Moreover, the applicant used those reference periods for its own calculations concerning HP in its response to the Statement of Objections of 2007.

296Lastly, the Commission sets out the reason why the calculation for the entire duration of the HPA1 agreement’s validity– namely a year and half– does not use contestable shares established for a one-year and a half time horizon, but instead an average over the life of the quarterly contestable shares during the period of validity of the HPA1 agreement established for a one-year horizon. According to the Commission, whatever the point in time in which the as-efficient competitor attempted to enter the HP market, HP would have had to assess that competitor’s proposal for the year commencing at the point of its market entry.

297In recitals1334 to 1337 of the contested decision, the Commission set out its calculations regarding HP’s required share.

298In recitals1385 to 1387 of the contested decision, the Commission, referring to the figures in recital1334 of that decision, concluded that the required share was consistently above the contestable share.

299In recital1406 of the contested decision, the Commission found that, on the basis of the comparison of the contestable share and the required share conducted in recitals1385 to 1389 of that decision, it had been concluded that, during the period from November 2002 to May 2005, the rebates granted by Intel to HP were capable of having an anticompetitive foreclosure effect.

300In the first place, it should be recalled that, according to the case-law, as regards the application of Articles101 and 102 TFEU, there is no requirement under the law of the European Union that the addressee of a statement of objections must challenge its various matters of fact or of law during the administrative procedure, if it is not to be barred from doing so later at the stage of the judicial proceedings (judgment of 1July 2010, Knauf Gips v Commission, C‑407/08P, EU:C:2010:389, paragraph89).

301Therefore, the Commission’s argument that the applicant did not challenge, during the administrative procedure, the periods used by the Commission for its calculations cannot succeed.

302The same applies with regard to the Commission’s argument that the applicant used the periods in question for its own calculations during the administrative procedure. Since certain periods were used by the Commission for its own calculations in the contested decision, they form part of the reasoning of that decision which the applicant may challenge before the Court.

303In the second place, it must be observed that Table 34, which is found in recital1334 of the contested decision, setting out the parameters and calculations of the required share (‘Table 34’) covers the period from the fourth quarter of the 2003 tax year to the third quarter of the 2005 tax year, with the result that it does not incorporate any data relating to the months of November and December 2002 or the first three quarters of the 2003 tax year.

304In addition, the applicant is correct in arguing that the figures for the HPA1 agreement found in the first line of Table 35, which seek to determine the robustness of the Commission’s conclusions by setting out the calculation of the required share for the HPA agreements, are derived from the arithmetic sum or average of the figures in the first three lines of Table 34.

305Specifically:

–the number of x86 CPUs purchased by HP set out in Table 35 for the period covered by the HPA1 agreement, namely 7079382 units, matches the number of x86 CPUs purchased by HP over the period from the fourth quarter of the 2003 tax year to the second quarter of the 2004 tax year, set out in Table 34 (fourth quarter of the 2003 tax year: 2416750 units; first quarter of the 2004 tax year: 2200225 units; second quarter of the 2004 tax year: 2462407 units);

–the amount of the rebates received by HP set out in Table 35 for the period covered by the HPA1 agreement, namely USD97499999, matches the rebates received by HP over the period from the fourth quarter of the 2003 tax year to the second quarter of the 2004 tax year, set out in Table34 (fourth quarter of the 2003 tax year: USD32499999; first quarter of the 2004 tax year: USD32500000; second quarter of the 2004 tax year: USD32500000);

–the value ‘V’ (namely, the percentage of the total volume of x86 CPU units which HP would have purchased from the applicant while complying with the quasi-exclusivity condition) set out in Table 35 for the period covered by the HPA1 agreement, namely 6725413 units, matches, to within one unit and taking into account a typing error, the ‘V’ values for the period from the fourth quarter of the 2003 tax year to the second quarter of the 2004 tax year, set out in Table 34 (fourth quarter of the 2003 tax year: 2295913 units; first quarter of the 2004 tax year: 2090214 units; second quarter of the 2004 tax year: 2339287 units);

–the ‘ASP of Intel CPUs’ set out in Table 35 for the period covered by the HPA1 agreement, namely 165.15, matches the unweighted arithmetical average of the ASP identified, for the period from the fourth quarter of the 2003 tax year to the second quarter of the 2004 tax year in Table 34 (fourth quarter of the 2003 tax year: 176.19; first quarter of the 2004 tax year: 159.45; second quarter of the 2004 tax year: 159.82).

306In that regard, it should be noted that the Commission does not maintain that the demonstration set out above is the product of a coincidence and that the various values set out in paragraph305 above are identical for the missing three quarters and for the following three quarters.

307Consequently, the foregoing is sufficient to demonstrate that the months of November and December 2002 and the first three quarters of the 2003 tax year were not actually taken into account by the Commission in the calculations which gave rise to the figures set out in Table 35. The calculation of the required share throughout the duration of the HPA1 agreement which produced the results set out in Tables 34 and 35 therefore does not cover the whole of the period between November 2002 and May 2005, in relation to which the Commission took the view that it could demonstrate that there was a foreclosure effect caused by the rebates which Intel granted to HP.

308In the third place, the arguments put forward by the Commission are not such as to call into question the foregoing conclusion.

309First of all, in the rejoinder, the Commission maintains that the result of a quarterly calculation does not differ fundamentally from the result of the overall calculation which is alleged to have been made.

310However, that argument is made in response to the reply, in order to claim that the approach used in the contested decision, based on an average of the quarterly contestable shares, in which the contestable share is calculated over a maximum period of one year, was not incompatible with making a calculation over the entire duration of the validity of the HPA1 agreement. Although the calculations made by the Commission in the contested decision do not take account of the data for the months of November and December 2002 or for the first three quarters of the 2003 tax year over the duration of the HPA1 agreement, it matters little whether those calculations are made on a quarter-by-quarter basis or on an overall basis, since the months of November and December 2002 and the first three quarters of the 2003 tax year will never be taken into account, whatever figures they may involve.

311Next, in the defence and the rejoinder, the Commission, in support of its arguments, refers to annexes B.31. and D.17 to those documents.

312As regards the reference in the defence to Annex B.31, it should be recalled that, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with Article21 of the Statute of the Court of Justice of the European Union and Article76 of the Rules of Procedure of the General Court, must appear in the application (judgment of 17September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph94).

313Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (judgment of 17September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph94).

314Thus, an annex to the application may be taken into consideration only in so far as it supports or supplements the arguments expressly set out by the applicant in the body of the application and in so far as it is possible for the Court to determine precisely what are the matters contained in the annex that support or supplement those arguments (see, to that effect, judgment of 17September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph99).

315In the present case, in the defence, the Commission simply states that the period analysed in the contested decision, namely the full period covered by the HPA1 agreement, is relevant for the purposes of the AEC test, without developing that argument, and it refers, without providing further information, to the explanations set out in Annex B.31, without it being possible for the Court to determine precisely which elements in that annex might substantiate that undeveloped argument. It follows that that argument is inadmissible, through application, by analogy, of the case-law referred to in paragraphs312 to 314 above.

316As regards the rejoinder, the Commission refers to paragraphs77 to 82 of AnnexD.17 to submit that quarterly calculations based on a figure supplied by HP lead to results which are less favourable to Intel than the average results on which the contested decision is based.

317In so far as the Commission submits, in Annex D.17 to the rejoinder, a calculation for two of the three missing quarters, namely the second and third quarters of the 2003 tax year, it should be noted that those calculations are not apparent from the contested decision and are submitted for the first time during the judicial proceedings. The Court cannot therefore take those additional calculations into account in order to substantiate the AEC test contained in the contested decision without substituting its own reasoning for that of the Commission in that decision. However, the case-law cited in paragraph150 above prohibits the Court from making such a substitution.

318Be that as it may, it must be stated that there is nothing to demonstrate the accuracy of the premiss put forward by the Commission that, because the rebates were stable during the period covered by the HPA1 agreement, the results of the required share would be the same for the missing two months and three quarters. In addition, it should be recalled that the required share is calculated by reference to three parameters, namely the amount of the rebates, the volume of HP’s purchases and the ASP. It has not been demonstrated in the contested decision that the value of those last two parameters, for the missing two months and three quarters, was identical to the values identified in the examination of the quarterly periods taken into account. Also, there is no guarantee that the data for the months and quarters not taken into account for the AEC test do not differ from those identified for the quarterly periods analysed.

319Consequently, it follows from the foregoing that the Commission erred in finding that its calculation of the required share allowed it to draw conclusions concerning the foreclosure effect of the rebates which Intel granted to HP for the entire period between November 2002 and May 2005. The Commission has not demonstrated that that effect was present for the period between November 2002 and September 2003.

320The fact that the Commission carried out an alternative calculation of the required share in recital1389 of the contested decision, using the figures set out in recital1338 of that decision, cannot make up for that error. It is apparent from Tables36 and 37 that the data concerning the required share in the two alternative scenarios envisaged by the Commission cover the period from the fourth quarter of 2004 to the third quarter of 2005 and the period from the second quarter to the third quarter of 2005 respectively. Accordingly, that alternative calculation also does not cover the whole of the period between November 2002 and May 2005.

(2)The alleged reinforcing factors

321In recitals1390 to 1395 of the contested decision, the Commission stated, in essence, that the AEC test did not take account of two additional considerations, namely, first, that the Commission had used figures which were most favourable to the applicant and, second, that, if HP were to switch its purchases of x86 CPUs to AMD, the applicant could in turn transfer the rebates initially intended for HP to another competitor using its x86 CPUs, such as Dell. That, according to the Commission, exacerbates the disadvantages for HP resulting from a switch of its purchases of x86 CPUs to AMD.

322The applicant submits, first, that the Commission does not explain why an increase in the rebates granted to HP’s competitors, in order to meet competition, is anticompetitive. Second, it is apparent from the HP document entitled ‘Managing Intel and AMD to maximise value to BPC’ that HP itself had concluded that a measure of that type did not constitute a real risk and that that phenomenon had not been observed in other global business units with a richer mix of AMD products. Third, if HP had received one million x86 CPUs from AMD free of charge, it would have avoided paying USD163.86 million to the applicant (namely the ASP excluding rebates for one million x86 CPUs). The applicant’s total rebates provided for in the HPA1 agreement amounted to only USD130 million, with the result that HP would have had to pay almost USD34 million to purchase the equivalent number of x86 CPUs from the applicant. HP, in the applicant’s view, therefore must have rejected AMD’s offer simply because there was insufficient demand for AMD-based x86 CPU systems and did not take into consideration the potential loss of the rebates granted by the applicant. Fourth, it is also apparent from the HP document entitled ‘Managing Intel and AMD to maximise value to BPC’ that there was uncertainty over market acceptance of AMD by enterprise customers.

323The Commission asserts, first, that the possibility of a rebate being transferred to HP’s competitors would strengthen the economic incentives so that HP would not be moved to infringe the conditions of the HPA agreements. Second, the HP document entitled ‘Managing Intel and AMD to maximise value to BPC’ does not address transferring rebates to competitors. Third, HP’s decision not to accept AMD’s offer of one million free x86 CPUs is not the result of a mere accounting comparison. Unlike the AEC test, which is purely theoretical, real business decisions are influenced by multiple factors. The Commission argues that the applicant’s calculations are, moreover, flawed, because, while HP was able, under the HPA agreements, to obtain small quantities from AMD, it ultimately acquired 160000 x86 CPUs. Accordingly, HP did not refuse one million x86 CPUs, but only 840000 x86 CPUs. With an ASP of USD163.86 per unit, the saved amount is equal to only USD137.6 million, which is not significantly different from the USD130 million of HPA rebates.

324In that regard, before considering whether or not the Commission erred in its assessment in the contested decision of the reinforcing factor identified therein, consisting of a transfer of the rebates initially granted to HP to its competitors, it must be observed that the contested decision contains no analysis of the effect of that factor on the factors taken into consideration in the AEC test.

325It has consistently been held that an absence of or an inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article263 TFEU and is a plea involving a matter of public policy which may, and even must, be raised by the EU Courts of their own motion (see judgment of 2December 2009, Commission v Ireland and Others, C‑89/08P, EU:C:2009:742, paragraph34 and the case-law cited).

326In the light of the foregoing, the Court is required to rule on whether there has been a possible failure to fulfil the obligation to state reasons and to hear the parties for that purpose, which it did at the 2020 hearing.

327It should be recalled that, according to settled case-law, the scope of the obligation to state reasons depends on the nature of the measure in question and on the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution, in such a way as to enable the persons concerned to ascertain the reasons for the measure so that they can defend their rights and ascertain whether or not the measure is well founded and to enable the EU Courts to carry out their review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 18January 2012, Djebel– SGPS v Commission, T‑422/07, not published, EU:T:2012:11, paragraph52 and the case-law cited).

328In the present case, the fact remains that, although the Commission took the view that the transfer of the rebates initially intended for HP to its competitors was a reinforcing factor supporting the conclusions which it drew from the AEC test, the Commission did not specify which of the factors taken into account in that test would be influenced and how. Since the Commission found that that reinforcing factor played a role in the assessment of the foreclosure capability of the rebates at issue, the Commission was required to assess more precisely the effect of the reinforcing factor on the foreclosure capability of the rebates at issue. That is all the more so since the Commission found, in recital1395 of the contested decision, that that factor prevailed over all the arguments made by the applicant during the administrative procedure on the factors used by the Commission to apply the AEC test in respect of HP.

329At the 2020 hearing, in response to a question from the Court on (i) its reasoning that the reinforcing factor consisting of a transfer of the rebates initially granted to HP to one of its competitors outweighed all the errors contained in the contested decision and (ii) the reasoning of the contested decision in that regard, the Commission simply stated that no reasonable business partner would have refused AMD’s offer to provide it with it one million x86 CPUs free of charge. Also, HP refused AMD’s offer solely because of the consequences that acceptance would have had on its relationship with the applicant. The Commission considered that it had nothing to add to what was stated in the contested decision.

330Accordingly, there being no need to give a ruling on its admissibility, it must be held that the argument put forward by the Commission at the 2020 hearing is a simple unsubstantiated assumption which cannot make up for the lack of reasoning in the contested decision as to the influence of the reinforcing factor, consisting of a transfer of the rebates initially granted to HP to one of its competitors, on the Commission’s conclusions stemming from the AEC test.

331In the light of the foregoing, it must be held that the contested decision, as regards the reinforcing factor consisting of a transfer of the rebates initially granted to HP to one of its competitors, is vitiated by a failure to state reasons.

332In the light of the foregoing, it should be noted that, in recital1406 of the contested decision, in order to assert that it had demonstrated the capability of the rebates granted to HP to have a foreclosure effect, the Commission relied on the comparison of the contestable share and the required share, the reinforcing factors and the absence of relevance of Intel’s allegations concerning a ‘new theory’ by the Commission.

333First of all, it is apparent from recitals1396 to 1405 of the contested decision that the examination of the absence of relevance of Intel’s allegations concerning a ‘new theory’ by the Commission is not an alternative AEC test, but a challenge to new calculations submitted by Intel in its observations of 28March 2008, with the result that it cannot be regarded as an examination by the Commission which is designed to establish the capability of the rebates at issue to have a foreclosure effect.

334Next, it follows from all of the foregoing, as regards the AEC test applied to HP, that the Commission, first, when comparing the contestable share and the required share, has not demonstrated that there were foreclosure effects in the period between 1November 2002 and 31September 2003 and, second, has failed to provide reasons, to the requisite legal standard, for examining the reinforcing factors.

335Consequently, the Commission has not established to the requisite legal standard the validity of the conclusion set out in recital1406 of the contested decision, that, during the period from November 2002 to May 2005, Intel’s rebate to HP was capable of having an anticompetitive foreclosure effect or was likely to have such an effect, since it has not demonstrated that there were foreclosure effects in the period between 1November 2002 and 31September 2003.

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

336In recitals451 to 453 to the contested decision, the Commission stated that NEC was one of the ten largest sellers of personal computers and servers worldwide. Until April 2005, NEC’s operations as an OEM were managed by two wholly owned subsidiaries, namely NEC Japan and NEC Computer International (‘NECCI’). NEC Japan managed NEC’s activities in Japan and the Americas, whereas NEC’s operations in the rest of the world were handled by NECCI. NECCI was based in Europe, but also managed NEC’s operations in Asia (with the exception of Japan) through its Asia-Pacific countries branch. In April 2005, the corporate structure was modified and the Asia-Pacific countries branch was hived off from NECCI and transferred back to NEC Corporation.

337It is also apparent, in particular, from recitals483, 501 to 502 and 981 of the contested decision that, first, between October 2002 and November 2005, Intel had granted rebates to NEC under an arrangement called the ‘Santa Clara Agreement’ adopted in May 2002 (‘the Santa Clara agreement’), second, the rebates granted under that agreement were de facto conditional on NEC agreeing to purchase from Intel 80% of its x86 CPU requirements worldwide, with that global share being broken down into a 70% requirement for NECCI and a 90% requirement for NEC Japan, and third, in order to prove that they had reached the required market share, NEC and NECCI were required to notify their market shares to Intel on a quarterly basis.

338Under the Santa Clara agreement, Intel states that it provided NEC with both discounts known as ‘exception to customer authori[s]ed pricing’ (‘ECAP’) and market development funds (‘MDF’). The Commission noted, in recital466 of the contested decision, that, after 1July 2003, the structure of Intel’s payments changed and that the MDF had been subsumed into ECAP and had been renamed ‘super ECAP’.

339The Commission examined the rebates granted by Intel to NEC using the effective price method in the AEC test. According to that method, the Commission calculated the ratio between the total value of the payments granted under the Santa Clara agreement and the value of the Intel business at risk in the fourth quarter of 2002 in order to achieve a measure of the effective price. The Commission then compared that ratio with the existing ratio between Intel’s ASP and AAC and concluded that Intel had priced below its costs because the first ratio was lower than the ratio between the ASP and AAC.

340The applicant maintains that the Commission’s calculations are vitiated by five errors, each of which is sufficient to overturn its conclusions. Intel asserts, first, that the Commission’s own data show that the rebates granted to NEC are not capable of foreclosing an as-efficient competitor; second, that the Commission erred in calculating the conditional portion of the rebates granted to NEC; third, that the Commission incorrectly calculated the value of the business at risk for Intel; fourth, that the Commission relied on an incorrect value in determining Intel’s AAC and, fifth, that the Commission erred in assuming that the fourth quarter of 2002 was representative of the entire period for which abuse had been found.

341The Court considers it appropriate to examine first the substance of the argument which seeks to demonstrate that the Commission erred in its calculation of the conditional portion of the rebates.

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

342The applicant states that, according to recitals1408, 1443 and 1444 of the contested decision, all the discounts granted to NEC in the fourth quarter of 2002 were conditional. First, it argues, that argument is not supported by the evidence put forward in the contested decision and is, moreover, contradicted by the unambiguous responses provided by NECCI under Article18 of Regulation No1/2003 and by other evidence, according to which the USD6 million of MDF provided in respect of the fourth quarter of 2002 was the only advantage granted to NEC under the market share commitment provided for in the Santa Clara agreement. According to Intel, the Commission was therefore wrong to take the view that ECAP was conditional. Second, Intel argues that NEC received significant rebates from Intel during the periods prior to the agreement, when Intel’s market share for NEC’s purchases was significantly below 80%. The Commission does not explain why NEC would have lost 100% of its rebates if it had purchased less than 80% of its x86 CPUs from Intel even though it had already done so without suffering such a loss. Third, it is not disputed that Intel granted rebates to NEC even though NEC did not reach the 80% threshold, which, according to the findings in the contested decision, was a prerequisite to obtaining any discount.

343The Commission disputes Intel’s arguments. First, it states that the contested decision contains no finding that all the rebates granted to NEC were conditional. The contested decision simply states that the conditional portion of the Intel rebates included not only MDF payments but also certain– but not necessarily all– categories of ECAP-type rebates. That finding is, according to the Commission, based on a consistent, precise and firm body of evidence set out in recitals1412 to 1444 of the contested decision and in Annex B.31 to the defence.

344The Commission’s view is that Intel’s argument based on the grant of significant rebates during the periods preceding the Santa Clara agreement is not persuasive, inter alia, on the ground, first, that the conditions applicable to the rebates previously granted are unknown and, second, that the data submitted by NECCI show an increase of some 500% in rebates granted by Intel to NECCI following that agreement.

345Lastly, in so far as the applicant asserts that it granted rebates to NEC even though NEC did not manage to fulfil the 80% market share condition, the Commission adds, in the context of the AEC analysis, that, even if Intel’s claims that AMD’s market share at NEC had ‘routinely’ exceeded the 20% threshold were correct, AMD’s share at NEC never came close to the contestable share (41%).

346As regards the applicant’s first argument that the Commission erred in taking the view that ECAP was conditional, it is necessary to determine whether the Commission demonstrated in the contested decision that the rebates taken into consideration in the calculation of the effective price of Intel x86 CPUs sold to NEC other than MDF, namely ECAP, were conditional on NEC complying with its obligation to source from Intel a certain percentage of its x86 CPU purchases.

347In recitals1415 to 1444 of the contested decision, the Commission assessed the total value of conditional rebates as falling between USD13088100 and USD16583100, of which USD6 million consisted of MDF and the remainder of ECAP.

348Consequently, a finding that ECAP is not subject to a specific market share would necessarily call into question the Commission’s calculations, as they appear in the contested decision.

349It is therefore necessary to assess, on the basis of the evidence relating to the fourth quarter of 2002 upon which the Commission based the AEC test in respect of NEC, whether, during that quarter, payments other than MDF were conditional upon NEC obtaining supplies from Intel up to a certain percentage of market segment share (‘MSS’). At the outset, it must be pointed out that the applicant does not deny that, under the Santa Clara agreement, it provided NEC with both MDF- and ECAP-type rebates. However, the applicant maintains that, unlike the first of those rebates, ECAP was not conditional on the obligation to reach a certain level of MSS.

350The applicant claims, in essence, that the evidence presented in the contested decision does not support the conclusion that ECAP was conditional in the fourth quarter of 2002, and it draws attention to other documents, from which it claims that it is apparent that the only rebates conditional on NEC’s obligation to reach a certain level of MSS were MDF. The Commission disputes the applicant’s arguments and maintains that the evidence adduced by Intel does not demonstrate that MDF was the only rebate conditional on NEC’s obligation to obtain supplies from Intel up to a certain percentage of MSS.

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

351In the first place, it must be pointed out that the Commission relied, inter alia, in recitals461 and 464 of the contested decision, on a presentation by NEC of 27January 2003, entitled ‘NEC/Intel WW Meeting (Purchasing Session)’ and, more specifically, on the fourth page of that presentation, entitled ‘WW: CQ4/Y2002 Achievements’. That page confirms, under the heading ‘Original Plan’, that NEC’s intention was to obtain supplies from Intel for only 59% of its requirements, namely 68% for NEC Japan, the division of NEC active on, inter alia, the Japanese market, and 48% for NECCI. In addition, that page sets out, under the heading ‘Realignment Plans’, first, the market shares envisaged by Intel, namely 70% for NECCI, 90% for NEC Japan and 80% at a worldwide level and, second, certain rebates and other benefits to be granted to NEC by Intel. Those plans deal with, inter alia, MDF, reduced prices (rebates) for x86 CPUs, ‘MultiNational Corporation status’ and a Supply Line Agreement.

352However, it must be stated that, while that document post-dates both the conclusion of the Santa Clara agreement and the quarter in question, and mentions reduced prices, that is to say ECAP, as being one of the advantages enjoyed by NEC under that agreement and confirms that that ECAP formed part of that agreement, which is not disputed by Intel, it does not follow that ECAP was conditional on a certain level of MSS. That document is therefore, at most, merely circumstantial and must be confirmed by other evidence.

353In the second place, recitals462 and 464 of the contested decision are based on an email of 15May 2002 in which a senior NEC executive informed an NECCI executive that, following a conference call held on the same day with Intel’s executives, NEC would have MultiNational Corporation status, that it would increase its share of purchases of x86 CPUs from Intel to a certain worldwide percentage of its total sales and that Intel would give MDF and ‘aggressive prices’, that is to say reduced prices to NEC for ‘Celeron’ x86 CPUs.

354However, as was the case for the document of 27January 2003, that email, which is contemporaneous with the conclusion of the Santa Clara agreement, does not reveal any link between the market shares and the existence, or amount, of ECAP. Even if it were possible to take the view that the reference to ‘aggressive prices’ refers to ECAP, it is apparent only that ECAP forms part of the Santa Clara agreement and is mentioned in the context of the objectives of increasing Intel’s market share in NEC’s purchases of x86 CPUs. It is not expressly stated that ECAP was dependent on NEC meeting those objectives.

355In the third place, in recital462 of the contested decision, the Commission refers to an exchange of emails between NEC executives dated 10May 2002 (‘the NEC email exchange of 10May 2002’). That exchange describes how NECCI and NEC Japan could reach the levels of MSS requested by Intel and mentions the sums which would be received as MDF.

356However, the fact remains that that evidence, which predates the conclusion of the Santa Clara agreement and which forms part of the negotiation of that agreement, makes no mention at all of ECAP, as Intel correctly points out, with the result that it cannot support the Commission’s finding regarding the conditionality of ECAP. On the contrary, it appears that that email exchange corroborates Intel’s argument that MDF was the only rebate dependent on Intel’s market share of NEC’s purchases. From the wording of that exchange, it is apparent that NECCI and NEC were to reduce the market share of AMD in their purchases and would receive a certain amount as MDF. It therefore appears that MDF is a consequence of reductions in the market share of AMD and is the only benefit which is directly dependent on the respective levels of both AMD’s and Intel’s market shares within NEC’s purchases.

357In the fourth place, in recital464 of the contested decision, the Commission mentions NECCI’s response to question 14 of the 2005 information request made under Article18 of Regulation No1/2003 (‘the 2005 information request’). The Commission maintains that it is apparent from that response that ECAP was dependent on the levels of MSS. Intel claims, however, in essence, that what is involved is a reference to ECAP in force after the fourth quarter of 2002.

358In that regard, it must be pointed out that it is stated at the beginning of the second paragraph of that response that ECAP prices are dependent on an agreement on levels of MSS and not on volumes.

359As has already been observed in paragraph967 of the initial judgment, NECCI’s responses provided under Article18 of Regulation No1/2003 are particularly reliable evidence, since, first, NECCI would appear to have had no interest in providing incorrect information which could be used by the Commission to establish an infringement of Article102 TFEU committed by Intel, its unavoidable trading partner, and, second, fines may be imposed under Article23(1)(a) of Regulation No1/2003 if the information is incorrect.

360Nevertheless, taken in context, the Court does not consider that that response can be used as evidence to support the Commission’s findings.

361First, the 2005 information request was organised so that each reference to a document was followed by one or more questions relating to that document. As the Commission confirmed at the 2020 hearing following a question put by the Court, the response to question 14 concerns the document entitled ‘JH 210’. That refers to a statement made by a seller of NECCI on 22February 2005. Accordingly, the document entitled ‘JH 210’ is subsequent to that date and, consequently, to the fourth quarter of 2002 and the date on which Intel’s scheme for rebates to NEC was modified, namely 1July 2003. Consequently, NECCI’s reply to question14 concerns a document and a statement which are not certain to be directly relevant to what the Commission was seeking to demonstrate, since it appears that they concern a period after 1July 2003, that is to say, a period during which Intel’s payment structure had changed and MDF had been subsumed into the standard ECAP-type discounts and had been renamed ‘super-ECAP’.

362Second, in the light of that clarification regarding time and context, it is not certain whether, in mentioning ECAP, the response referred, as a general category of rebates granted by Intel, to ‘super-ECAP’ (also referred to as ‘special ECAP’), which existed from 1July 2003 and replaced MDF, while being subsumed into the general category of ECAP, or to classic ECAP, which was, however, referred to simply as ‘ECAP’ and which existed both in the fourth quarter of 2002 and after the modification of the system of rebates. As is apparent, in particular, from NECCI’s response to question 20 of the 2005 information request, ‘super-ECAP’, like the MDF which it replaced, was conditional on a certain level of MSS, whereas ECAP was not.

363In the fifth place, in recital464 of the contested decision, the Commission examined an internal NEC presentation of 15May 2002, which is contemporaneous with the negotiation of the Santa Clara agreement. The Commission demonstrated that, in exchange for a certain level of MSS, Intel agreed to a dozen payments to NEC, only two of which were MDF.

364That two-page document presents two MDF payments to NEC approved by Intel and other price levels for different types of x86 CPUs. However, there is no information concerning obligations regarding NEC’s level of MSS. The second page contains a graphic demonstrating the transition from the original plan to the revised plan, and therefore to the realignment plan leading to the Santa Clara agreement, and sets out the respective objectives for Intel’s market share of NEC’s purchases of x86 CPUs. The transition from the original plan to the realignment plan is graphically presented by an arrow between the two plans, in the middle of which the reference ‘$6M MDF’ appears, namely the MDF payment of USD6 million. Only that payment appears clearly in that document as consideration for the increase in the level of MSS. It follows that, while the document confirms, as is the case for the first two documents analysed, that ECAP was discussed in the negotiations which led to the Santa Clara agreement, it was only MDF which was dependent on the level of MSS.

365In the sixth place, in its defence, the Commission refers to page4 of an internal NEC presentation of 15April 2002, from which it is apparent that, in return for the increase in Intel’s market share within NEC’s purchases, NEC wished to receive, inter alia, ECAP.

366It is apparent from that presentation that NEC identified three requests to be made to Intel in order to increase its level of MSS within NEC’s purchases. The requests concerned a ‘Marketing & Engineering Fund’ (which is probably MDF), but also ECAP, and the improvement of the contractual framework with Intel.

367However, the Court considers that that presentation cannot provide a sound basis for the conclusion reached by the Commission.

368Although the document examined presents ECAP as part of the consideration for adopting the realignment plan, what is involved is a desire on the part of NEC prior to negotiation with Intel and not a presentation of rebates as they were defined in the Santa Clara agreement following its negotiation.

369In the seventh place, the Commission refers, in its defence, to an NEC presentation dated 6May 2002 containing another graphic representation of NEC’s possible transition from the original plan to the realignment plan. The transition is graphically illustrated by an arrow with a comment relating to it, stating that it ‘will depend on more than [USD6 million] MDF’. In addition, another page of that presentation mentions ‘need ECAP to achieve [the realignment plan]’.

370However, as is the case for the NEC presentation of 15April 2002, although the document is contemporaneous with the Santa Clara agreement negotiations (meetings of 6 and 7May 2002), it does not set out the results of those negotiations, but only NEC’s wishes. Consequently, it must be rejected for the same reasons as those set out in paragraph368 above.

371It follows from the foregoing considerations that it is apparent from the documents taken into account by the Commission as a whole that the rebates on the prices of x86 CPUs, including ECAP, were discussed and agreed in the context of the Santa Clara agreement negotiations and that NEC wished to obtain concessions on ECAP as consideration for its MSS level commitment. However, only the NEC presentation of 27January 2003 can constitute evidence supporting the Commission’s position that the ECAP finally agreed in the context of the Santa Clara agreement was paid, at least in part, as consideration for compliance with the obligation relating to a level of MSS noted in the realignment plan. By contrast, the NEC email exchange of 10May 2002, NECCI’s response to question20 of the 2005 information request and the internal NEC presentation of 15May 2002 tend rather to demonstrate that solely the MDF agreed under the Santa Clara agreement was conditional.

372Consequently, the Court considers that those documents do not contain sufficient evidence or a set of indicia sufficient to confirm the argument concerning the conditionality of ECAP in the fourth quarter of 2002.

(ii)The evidence adduced by Intel

373At this point, it is necessary to assess the evidential value of the documents put forward by Intel to call into question the Commission’s finding that both MDF and ECAP were conditional.

374In the first place, as regards the applicant’s argument that, in essence, no relationship of conditionality between ECAP and a level of MSS is apparent from the response to question 32 of the 2005 information request, it should be noted that the Commission specifically asked NECCI to specify the type of benefit, if any, granted to NECCI in exchange for it meeting the MSS level obligation in the realignment plan. However, in its reply, NECCI mentioned only MDF. In that document, which sets out the outcome of the Santa Clara agreement, MDF is presented as the sole consideration for achieving levels of MSS, with the result that solely MDF is conditional.

375The Commission casts doubt on the evidential value of that document by stating that it is apparent from the documents annexed to that response that ECAP is conditional. The Commission simply refers to confidential annexes32.1 to 32.4. However, while it is possible to identify the first two annexes, that is not the case for the latter two annexes. As regards Annex32.1, this corresponds to the NEC email exchange of 10May 2002, referred to in recital462 of the contested decision, which was analysed in paragraphs355 to 356 above and which has been found to support Intel’s argument. Annex32.2 corresponds to the document analysed in paragraphs353 and 354 above which was found not to prove that ECAP was conditional.

376It must therefore be found that, by simply referring to the annexes mentioned above without providing further details, the Commission has failed to dispute the evidential value of NECCI’s response referred to in paragraph371 above, to which a great evidential value must be attached, since it is an exhaustive response to a direct question provided under Article18 of Regulation No1/2003. NECCI’s response to question 32 of the 2005 information request therefore tends to support the argument that solely the MDF agreed in the context of the Santa Clara agreement was conditional and that ECAP was not.

377In the second place, in question 21 of the 2005 information request, the Commission in particular requested NECCI to explain, first, whether the ECAP rebates offered to it were dependent on NECCI, NEC Japan and NEC complying, at a worldwide level, with certain levels of MSS provided for in the Santa Clara agreement and, second, the consequences of non-compliance with those obligations for a given quarter.

378In its reply, NECCI explained, first, that ‘special ECAP’, ‘super-ECAP’ or the MDF granted to it were dependent on compliance with specific levels of MSS both by it and by NEC Japan and NEC at a worldwide level. However, unlike ‘special ECAP’ or ‘super-ECAP’, ECAP is not dependent on a certain level of MSS, but is simply the result of commercial negotiations. Second, at the time when global MDF was applied, if NECCI had not complied with its obligation concerning a certain level of MSS for a particular quarter, it would have received no MDF payment. At the time when the response to the 2005 information request was provided, if NECCI had not complied with its MSS obligation for a specific quarter, that would also have compromised the ‘super-ECAP’ negotiations for the following quarters.

379That response is clear. A great evidential value must be ascribed to an exhaustive answer to a direct question provided under Article18 of Regulation No1/2003.

380In addition, contrary to what the Commission asserts in its defence, NEC confirms, unambiguously, that the only rebates that were conditional on a particular MSS objective were MDF and ‘special ECAP’ or ‘super-ECAP’. By contrast, ECAP was not conditional on that objective and was determined in the context of business relations. Any penalty for failure to comply with the obligation relating to a level of MSS concerned MDF, ‘special ECAP’ or ‘super-ECAP’, and not classic ECAP. Since, as from 1July 2003, MDF became ‘special ECAP’ or ‘super-ECAP’, the only ECAP which existed during the fourth quarter of 2002 was classic ECAP. Consequently, NECCI’s response to question 21 of the 2005 information request tends to support the argument that classic ECAP was not conditional on a certain level of MSS.

381In the third place, by question 6 of its 2007 information request made under Article18 of Regulation No1/2003 (‘the 2007 information request’), the Commission, in essence, requested that NECCI specify which funds it had received during a period which also covered the fourth quarter of 2002, in exchange for complying with the MSS level obligation.

382In its response, NECCI mentions, as regards the period between the third quarter of 2002 and the second quarter of 2003, only MDF as being conditional and states that the market share percentage translated into a number of x86 CPUs to be purchased. Contrary to the Commission’s allegations, that response therefore confirms that, during the period concerned, only MDF was dependent on the condition regarding the levels of MSS. As a response provided by NECCI under Article18 of Regulation No1/2003, a great evidential value must be ascribed to that item of evidence.

383In the fourth place, in order to substantiate its claims, Intel referred to NEC’s minutes dated 8May 2002 of the meeting held with Intel on 6 and 7May 2002. As the Commission submits, it is apparent from the second page of that document that, in exchange for accepting the realignment plan, NEC wished to obtain not only MDF but also ECAP and a new contractual framework. That corresponds, moreover, to the documents examined in paragraph365 above. However, it is apparent from the third page of those minutes that the condition for achieving the level of MSS discussed on the second day of the negotiations consisted of allocating a certain sum as MDF. Furthermore, while Intel appears during the second day of the discussions to have accepted part of NEC’s request concerning ‘MDF/ECAP’, since there is a reference on the third page of those minutes that ‘Intel responded with 50% acceptance for total 12 items of NEC’s ECAP/MDF request’, that reference does not make it possible to determine which part of that request was accepted, namely whether it was the part concerning MDF or the part concerning ECAP. That is all the more the case given that, on the fourth page of those minutes, under the heading ‘Next step’, it is stated that ‘Intel reviews with [M and P] for MDF request/ECAP request’, with the result that it is not possible to identify whether part of NEC’s request was ultimately accepted and, if so, which. It must therefore be noted that those minutes are drafted in summary form and that there is uncertainty as to how they are properly to be understood.

384It must therefore be held that the evidential value of that document is relatively low, given it does not represent the outcome of the negotiations and that its summary nature makes it uncertain how it is properly to be understood.

385In the fifth place, in the reply, Intel adduces AnnexesC.37 and C.38, stating that they are documents preparatory to the Santa Clara agreements which were drawn up by NEC from which it can be seen that, irrespective of the level of MSS reached, NEC expected to receive the same level of ECAP.

386However, regardless of whether that evidence adduced by the applicant at the stage of the reply is admissible, first, AnnexC.37, at pages5 and 6, contains tables, figures and a reference to ‘ECAP request’, without it being possible to deduce clearly from it a correlation between the development of Intel’s market share and NEC’s expectations regarding ECAP. Second, Intel refers, in the reply, to ‘AnnexC.38 on page 10’. However, AnnexC.38 consists of a document comprising eight pages and containing a large amount of information, with the result that it is not possible for the Court to determine precisely the elements in the annex which support the applicant’s argument. Consequently, AnnexC.38 cannot be taken into consideration, in accordance with the case-law cited in paragraph314 above.

387It thus follows from all of the foregoing considerations that the evidence taken into account in the contested decision does not constitute sufficient evidence or a set of indicia sufficient to demonstrate that ECAP-type rebates, or rebates other than MDF, were conditional on the obligation imposed on NEC to reach a certain level of MSS during the fourth quarter of 2002. In addition, the other items of evidence relied on by Intel tend rather to support the argument that only MDF was conditional.

388From this it follows that the evidence relied on in the contested decision is not reliable, with the result that it is not capable of substantiating the conclusions drawn from it.

389Consequently, there being no need to examine Intel’s other arguments, it must be held that the Commission erred in its assessment of the value of the conditional rebates granted by Intel to NEC.

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

390The applicant criticises the Commission on the ground that it erred in carrying out the AEC test only for the fourth quarter of 2002 and in finding on that basis alone, in recital1456 of the contested decision, that the payments granted by Intel to NEC under the Santa Clara agreement were capable of foreclosing or likely to foreclose an as-efficient competitor during the entire period from October 2002 to November 2005. In other words, the applicant argues that the Commission erred in taking the view that the fourth quarter of 2002 was representative of all subsequent periods.

391In general, it submits, the Commission bears the burden of demonstrating that Intel’s practices were capable of foreclosing an as-efficient competitor throughout the reference period, but it had no basis for assuming that all the figures relevant to such a test, such as, for example, gross prices, discounts or volumes, remained unchanged from 2002 to 2005. That is the case, in particular, as regards the contestable share, in respect of which the Commission itself stated, in recital1243 of the contested decision, that it could increase over time as consumers become increasingly aware of the viability of the AMD alternative.

392In particular, first, the USD6 million of MDF linked to market share expectations did not remain in effect after the first quarter of 2003.

393Second, in its main observations, Intel states, in essence, that, contrary to what is stated in recital1410 of the contested decision, the application of the AEC test should not be based on an assessment of whether or not the rebate levels recorded for the quarter in question were significantly varied in subsequent periods, but on their actual levels. Comparatively small changes in discount levels can alter the outcome of the analysis. Intel argues that the Commission stated with regard to the rebates granted to NECCI that a new rebate programme had begun in July 2003, but the Commission never examined whether the changes introduced under that programme had affected any AEC test parameter.

394Third, Intel states, in those observations, that the lack of precision in the Commission’s prospective analysis is also based on the fact that recital1410 of the contested decision examines only the discounts granted to NECCI, whereas the infringement finding was in relation to the parent company as a whole, and thus in relation to NEC.

395The Commission submits, in its supplementary observations, that the arguments put forward by Intel in its main observations are inadmissible on the ground that the applicant was disputing for the first time the ground on which the Commission justified the extrapolation in question in the contested decision.

396As regards the substance, it submits, first, that recital1410 of the contested decision lists the reasons why that quarter is representative and the documentary evidence on which that decision relies.

397Second, the argument that MDF payments did not remain in effect beyond the first quarter of 2003 does not take account of the fact that documents in the file prove that those payments did not disappear, but that they were simply subsumed into other categories of rebate. NECCI also explained that the Santa Clara agreement and the associated conditions remained in force until at least November 2005.

398Third, the document which Intel puts forward in support of its assertions contains no calculation excluding MDF payments.

399Fourth, if it were true that Intel’s payments to NEC had undergone significant variations during that period, Intel could easily have provided evidence to that effect during the administrative procedure.

400Fifth, the analysis in recital1243 of the contested decision concerns Dell. The Commission submits, in essence, that that analysis cannot be transposed to NEC, since NEC did not obtain supplies exclusively from Intel, unlike Dell, with the result that NEC’s customers were already aware of the value of products with an AMD processor and that NEC’s contestable share during the quarter in which the Commission made its comparison was already substantial, since NEC’s initial plan was to make 41.6% of its purchases from AMD.

401As regards the admissibility of the arguments put forward by Intel in its main observations, it must be stated that Intel maintained, in paragraphs473 to 475 of the application, that the Commission’s allegation regarding the ability to extrapolate the results of its analysis of the fourth quarter of 2002 until 2005 had no basis. There is no evidence of any stability in gross prices, discounts or volumes. In that regard, Intel refers expressly to paragraphs454 to 473 of AnnexA.8 to the application, which set out its response to the arguments concerning that extrapolation made in the Statement of Objections of 2007. In paragraph467 of Annex A.8 to the application, Intel submits that the Commission provided no details as to the levels of ‘super-ECAP’. In paragraph468 of that annex, Intel distinguishes between the rebates received by the parent company NEC and those received by NECCI, stating that certain types of rebate were granted only to NECCI. In particular, Intel denies that the ‘super-ECAP’ nomenclature was used beyond the third quarter of 2003. In paragraphs470 and 471 of that annex, Intel states that the quantities of x86 CPUs purchased were the subject of constant renegotiation, with the result that nothing was fixed in the data for the fourth quarter of 2002.

402It follows that, contrary to the Commission’s assertions, in the application the applicant disputed numerous items of evidence regarding the data relating to the reference quarter being extrapolated to the entire period covered by the contested decision. The applicant stated that the difference between the discounts granted to NEC and to NECCI lies in different competitive constraints, from which it follows that it was impossible to make any presumption that the rebates granted were stable as between Intel and its customer. The applicant also states that the Commission has no data regarding the levels of ECAP payments for NEC and that the quantities of x86 CPUs purchased were anything but stable during that period.

403Consequently, it must be held that the arguments put forward by Intel in its main observations are admissible since they relate to arguments submitted in the context of the application.

404As regards the assessment of the substance of those arguments, it must be observed that the economic data used by the Commission in recitals1410 to 1455 of the contested decision to carry out the AEC analysis of the rebates granted by Intel to NEC include, inter alia, the total quantity of x86 CPUs purchased, the net and gross prices of the different types of x86 CPUs, the types and amounts of the rebates granted and Intel’s costs.

405First, the parameters of the alleged stability on which the Commission bases its ability to extrapolate, which are set out in recital1410(a) to (c) of the contested decision, concern only the level of rebates (MDF, ECAP and total rebates), the prolongation of those levels during the following quarters and Intel’s AAC, but the Commission conducts no analysis at all, as Intel in essence submits, of the volumes and types of x86 CPU sold or of their net or gross prices.

406Second, the table mentioned in recital1410(a) of the contested decision, and which is taken from NECCI’s response to question 9 of the 2007 information request made under Article18 of Regulation No1/2003, concerns only the rebates granted to NECCI, whereas the infringement of Article102 TFEU was established in regard to its parent company NEC. There is nothing to suggest that the rebates granted to NEC Japan or to NEC overall were stable during the entire period concerned by the infringement finding.

407Third, a review of the table mentioned above demonstrates that, contrary to what is stated in recital1410(a) of the contested decision, the rebates received by NECCI were not stable during the entire period concerned. There is a difference of 461.3% between the lowest payment, in the second quarter of 2003 (USD3.3 million) and the highest payment in the third quarter of 2005 (USD15.224 million). There is also a significant difference between the fourth quarter of 2002 (USD7.945 million), and the second quarter of 2003 (USD3.3 million), namely a reduction of 58.4%.

408Fourth, as NECCI stated in the response to question 9 of the 2007 information request, the system for granting rebates changed as from the third quarter of 2003. Instead of a single sum, ‘super-ECAP’ was included in the quarterly price setting. As Intel submits, there is nothing to indicate that that new system did not involve quantitative differences vis-à-vis the previous system.

409Fifth, although the Commission submits that the Santa Clara agreement remained in force until 2005, it does not follow that the situation prevailing in the fourth quarter of 2002 under that agreement persisted throughout the period of the alleged infringement. It follows in particular from paragraph2 of NECCI’s response to question 9 of the 2007 information request that, after 1July 2003, NECCI requested rebates on a monthly basis, based on the quantities purchased and the price difference between the pricing proposed to customers and the ECAP or ‘super-ECAP’. However, nothing permits the inference that the Commission examined whether the amendments introduced by that new programme had affected one of the parameters of the AEC test.

410It follows from all of the foregoing that, first, the parameters set out in recital1410(a) to (c) of the contested decision do not include all the economic data used by the Commission to carry out the AEC analysis of the rebates granted by Intel to NEC and, second, that, contrary to what is apparent from recital1410(a) and (b) of the contested decision, the evidence placed on the file shows that Intel’s payments to NECCI were subject to significant variations after the fourth quarter of 2002 and that the rebate system changed as from the third quarter of 2003. It follows that Intel is correct in maintaining that the Commission erred in taking the view that, given the parameters set out in recital1410(a) to (c) of the contested decision, it could rely on data relating to the fourth quarter of 2002 in order to draw conclusions regarding the capability of Intel’s practices to foreclose an as-efficient competitor between the fourth quarter of 2002 and November 2005.

411Consequently, there being no need to consider the applicant’s arguments referred to in paragraph340 above, that, first, the Commission’s own data showed that the rebates granted to NEC were not capable of foreclosing an as-efficient competitor and, second, the Commission incorrectly calculated the value of the business at risk for Intel, it must be concluded that, as regards the AEC test carried out for NEC, the Commission made two errors of assessment, first, by using an exaggerated value for the conditional rebates and, second, by extrapolating the results which it obtained for the fourth quarter of 2002 to the entire period of the alleged infringement. It must be held that, in the light of those two errors, the basic parameters of the Commission’s assessment of the AEC test are incorrect. Since those errors relate to the fourth quarter of 2002, which was taken as a reference for the entire period under consideration for the rebates granted to NEC, they affect the whole of the period examined in the contested decision as regards NEC. It follows that the Commission has not established to the requisite legal standard the validity of the conclusion set out in recital1456 of the contested decision, according to which the payments granted by Intel to NEC under the Santa Clara agreement were capable of foreclosing or likely to foreclose an as-efficient competitor.

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

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

412The Commission conducted the AEC test for Lenovo in recitals1457 to 1508 of the contested decision. The Commission analysed, first of all, the extent and nature of the rebates, on the basis of the 2007 MoU.

413The Commission then calculated the ASP, the costs and the required number of x86 CPU units.

414Finally, the Commission assessed the contestable number of x86 CPU units. In its principal calculation, it limited its assessment to the notebook segment (see recitals1473 to 1478 of the contested decision), whereas, in its alternative calculations, it responded to Intel’s assertions that the contestable number of x86 CPU units should also include the desktop segment (see recitals1479 to 1508 of the contested decision). Those alternative calculations are subdivided, first, into a response from the Commission to Intel’s allegations regarding the overall contestable number of x86 CPU units and, second, into a confirmatory calculation, made on the basis of a comparison with data from a document entitled ‘Statement of Work April 2006’, adopted pursuant to an agreement between AMD and Lenovo.

(2)The conditional portion of the rebates

415In recital1461 of the contested decision, the Commission stated that the amount of the rebates in question was set out in the 2007 MoU, which provided for a financial support of USD180 million for 2007, in the form of quarterly payments.

416In recital1462 of the contested decision, it was stated that the payments under the 2007 MoU were incremental to payments which Intel continued to make under other previously agreed financial support programmes, separately from the 2007 MoU. The Commission therefore took the view that they had to be attributed entirely to the outcome of the agreement on the 2007 MoU. All payments and favourable commercial terms provided for in the 2007 MoU were conditional on Lenovo cancelling its plans for notebook computers with AMD-based x86 CPUs.

417In recital1463 of the contested decision, it was stated that, in the submission of 5February 2009, Intel had put forward the argument that the relevant value for the size of the rebates was only USD138 million. That is explained by the fact that, out of the financial support for Lenovo of USD180 million provided for in the 2007 MoU, only USD135 million were awarded in the form of cash. The remainder of the financial support was awarded in the form of non-cash advantages, namely the extension of Intel’s standard one-year warranty and the offer of improved use of an Intel hub facility in China. The Commission stated that Intel had submitted that, whilst the value of those two non-cash contributions for Lenovo was USD20 million and USD24 million respectively, their cost for Intel was much lower, namely USD1.7 million and USD1.3 million respectively. Intel had submitted that, for the purposes of the as-efficient-competitor analysis, those elements had to be assessed not by reference to their value for Lenovo, but by reference to their economic cost to Intel. Intel reached the amount of USD138 million by adding the USD1.7 million and USD1.3 million costs to the USD135 million cash funding.

418In recital1464 of the contested decision, the Commission stated that, before discussing the validity of Intel’s argument on the appropriate measure to be used in the as-efficient-competitor analysis, it had noted the disparity between the alleged economic cost of the contributions for Intel and their value to Lenovo. The ratio between the value to Lenovo and the alleged economic costs for Intel was 1176% (20:1.7) for the warranty extension and 1846% (24:1.3) for the hub facility. The Commission stated that Intel had provided certain calculations carried out for the purpose of the 5February 2009 submission related to the Supplementary Statement of Objections of 2008 in support of its assertion regarding the economic cost of the contributions, but that it had failed to explain the reason for the stark discrepancy between those costs and their value to Lenovo.

419In recital1465 of the contested decision, the Commission noted that, without prejudice to the observation mentioned above, Intel’s argument that the appropriate measure to be used in the as-efficient-competitor analysis was not the value of such items to Lenovo but their economic cost for Intel was based on a misunderstanding of the principles of that analysis.

420In that regard, in recital1466 of the contested decision, the Commission stated that ‘the as-efficient-competitor analysis assesses the price at which a competitor which is as efficient as the dominant company– but which is not dominant– would have to offer its products in order to compensate the customer for the loss of the conditional benefits granted by the dominant company and which would result from that customer’s switching the contestable share of its supply needs away from the dominant company to the hypothetical as-efficient competitor’.

421Lastly, in recital1467 of the contested decision, the Commission stated that it was clear from the foregoing that the relevant measure was the loss for the customer, as that was the loss which the as-efficient competitor would have to compensate, and not the economic costs to the dominant company, in the event that the two figures diverged. That difference was illustrated, according to the Commission, by the case of the supply hub. As a dominant undertaking, Intel already had a supply hub in China, in respect of which it claimed that it needed to make only marginal improvements, with an economic value of USD1.3 million, in order to be in a position to offer Lenovo a full benefit value of USD24 million. However, the Commission stated that a competitor as efficient as the dominant company, but which was not dominant, would normally not have put in place such a facility at that stage. In order to compensate Lenovo for the loss of the benefit linked to improved use of Intel’s supply hub, the as-efficient competitor would therefore have to have awarded Lenovo a monetary payment equivalent to the economic value of the improved supply hub facility for Lenovo.

422The applicant makes a general assertion that the 2007 MoU did not support the conclusion that its rebates would have resulted in it foreclosing an as-efficient competitor. The Commission’s analysis, first, overstates the allegedly conditional portion of the discount, second, it understates the contestable share and, third, it overstates Intel’s costs. As regards, more specifically, the conditional portion, the applicant states that, so far as the rebates under the 2007 MoU are concerned, the contested decision concludes in recitals1461 and 1474 to 1477 that conditional rebates of USD180 million were granted for a contestable share of only 0.9 to 1.1 million notebook computers. However, according to the applicant, the amount of conditional rebates was only USD138 million.

423According to the applicant, the Commission’s methodology for taking account of those non-cash advantages is incorrect, on the ground that, for the purposes of the AEC analysis, the conditional rebate ought to take account of the costs incurred by the applicant in providing such rebates, and not of the value which they represent to Lenovo. The supplemental Shapiro-Hayes report of 28January 2009 (‘the Supplemental Shapiro-Hayes report’) calculated the cost to Intel of the two non-cash advantages at approximately USD3 million. Of the USD3 million, USD1680073 (rounded to USD1.7 million) correspond to the warranty extension and another USD1256948 (rounded to USD1.3 million) to Intel’s cost of offering Lenovo a supply hub.

424The Commission disputes all of the applicant’s arguments. The Commission submits that, in order to assess the conditional portion of the rebates, the contested decision assessed the incremental funding awarded by Intel to Lenovo in 2007 under the 2007 MoU. That approach is not disputed. According to the Commission, the decision established that that incremental funding amounted to USD180 million, based on the examination of slides prepared by Intel during the negotiation of the 2007 MoU. The Commission’s view is that it was correct to rely on the value of the non-cash advantages granted to Lenovo, instead of taking as a basis the cost for Intel of those advantages. According to the Commission, the as-efficient-competitor analysis involves an assessment, in essence, of the compensation which a hypothetical as-efficient competitor would have to offer to Lenovo for the loss of Intel’s rebates. In order to be incentivised to choose the as-efficient competitor, Lenovo would expect to be compensated for its own losses, and not for Intel’s losses.

425Moreover, the Commission submits, relying on Annex B.31 to the defence, that Intel has adduced no sound evidence that there was a divergence of views between Lenovo and it on the value of the non-cash advantages granted to Lenovo, nor, a fortiori, that Lenovo calculated a different value for those non-cash advantages. It also states that documents contemporaneous with the facts set out in the file prove that Lenovo considered those non-cash advantages to be a significant help for it and that Lenovo had requested them from Intel as from the beginning of the negotiations.

426According to the Commission, it is incorrect to assert, as the applicant does, that the value of the non-cash advantage for the purposes of the as-efficient-competitor analysis is the cost to the dominant undertaking of those advantages. The reply attempts, according to the Commission, to circumvent the error which vitiates the reasoning in the application, claiming that ‘by definition, an as-efficient competitor could provide the same non-cash benefit to Lenovo at the same cost as Intel’. That ignores the fact that the as-efficient competitor is smaller than Intel. The Commission refers to recital1467 of the contested decision, which explained that the as-efficient competitor would normally not have a supply hub in China at that stage. It would therefore, according to the Commission, have to provide cash compensation for the loss of the advantages granted by Intel to Lenovo.

427On that point, the Commission contends that the reply merely responds, first, by stating that an as-efficient competitor would necessarily have a supply hub in China and, second, by alleging that AMD had one. In that regard, the Commission considers that the first response provided in the reply is a mere assertion. There is, according to the Commission, no reason why a competitor, even one who is as efficient, would necessarily have a supply hub in China. As regards the second response provided in the reply, the as-efficient-competitor analysis is concerned, according to the Commission, with a hypothetical competitor, not AMD. In any event, the document to which Intel refers merely states that AMD had ‘facilities’ in China, which does not demonstrate the existence of a supply hub, let alone one which is equivalent to that of Intel.

428According to the Commission, paragraphs22 to 37 of Annex D.39 to the rejoinder show that, even if it were accepted that the as-efficient competitor had a supply hub in China, its cost in making that hub available to Lenovo would be significantly higher than the cost for Intel of providing that advantage. The same is true of the warranty extension. If, as Intel claims, the cost of the two non-cash advantages amounts to USD3 million for Intel, then the provision of the same benefits to Lenovo would cost an as-efficient competitor at least USD38 million. That amount is calculated using two of Intel’s assumptions which the Commission disputes, namely, first, that the as-efficient competitor would have a supply hub in China and, second, that Intel’s cost in awarding the non-cash advantages was USD3 million.

429According to the Commission, in any event, the key argument in the application and in the reply that the cost of the two non-cash advantages for Intel is USD3 million misrepresents Intel’s own evidence. Paragraphs38 to 44 of Annex D.39 to the rejoinder demonstrate, according to the Commission, that contemporaneous internal Intel documents show that the applicant calculated that, in reality, the cost of the two non-cash advantages would be equal to, or even higher than, their value to Lenovo. Their cumulated cost for Intel was found to be USD47 million, and not USD3 million as Intel alleges.

430Before considering the parties’ arguments regarding the two non-cash advantages, it should be noted that the applicant does not deny having mentioned the figures of USD20 million for the warranty extension and USD24 million for the supply hub, in a presentation which it prepared for Lenovo. The applicant claims, however, that those figures ought to be replaced, for the purposes of the AEC test, by USD1.7 million and USD1.3 million for each of them, in order to reflect its costs and not the benefit to Lenovo. The Commission attributed USD44 million of the USD180 million of conditional discounts to the non-cash advantages on the basis of the value which those services represented for Lenovo. From a reading of recital1465 of the contested decision, it is apparent that it cannot be accepted that the Commission took into consideration, in that decision, Intel’s calculations estimating its costs of offering the USD3 million of non-cash advantages or that it analysed that figure.

431The Commission’s approach consists, in essence, of taking the view that, even if it is accepted that an as-efficient competitor may, in principle, offer non-cash advantages, the fact remains that making available a supply hub or a warranty extension is more expensive for the competitor than the dominant undertaking, in particular where the value of the non-cash advantages is compared with the contestable share. The Commission also maintains that Intel adduced no sound evidence that there was a divergence of views between Lenovo and Intel on the value of the non-cash advantages granted.

432The applicant criticises that analysis by the Commission. According to the applicant, the Supplemental Shapiro-Hayes report and the Salop-Hayes report demonstrate that that methodology is incorrect and that an appropriate analysis of the as-efficient competitor takes into account the cost to Intel of providing those non-cash advantages. The applicant refers to the Salop-Hayes report, which states as follows:

‘For the as-efficient-competitor test, the conditional discount would include the cost to Intel of providing those benefits, not the value to Lenovo. The focus of the as-efficient-competitor test is to determine whether Intel’s incremental revenues on the contestable share exceed its incremental costs of providing that volume, taking into account the reduction in Intel’s profits from the conditional discounts. The reduction in Intel’s profits involves the cost to Intel of the non-cash benefits.’

433In that regard, the foundation of the AEC test applied by the Commission in the present case is set out, in particular, in recitals1003 and 1004 of the contested decision.

434In recital1003 of the contested decision, the Commission explains the logic inherent in the AEC test, stating that ‘in essence, this examines whether Intel itself, in view of its own costs and the effect of the rebate, would be able to enter the market at a more limited scale without incurring losses’.

435In recital1004 of the contested decision, the Commission states that the as-efficient-competitor analysis is a purely hypothetical exercise in the sense that it attempts to analyse whether a competitor which is as efficient as Intel, in terms of producing and delivering x86 CPUs that provide the same value to customers as Intel, but which would not have as broad a sales base as Intel, would be foreclosed from entering. That analysis is, in principle, independent of whether or not AMD was actually able to enter.

436It follows from the foregoing that the hypothetical competitor whose ability to enter the market is assessed notwithstanding Intel’s pricing practices is an as-efficient competitor, namely an operator capable of supplying x86 CPUs under the same conditions as Intel. As is apparent from recital1003 of the contested decision, the AEC test amounts, in essence, to examining whether Intel itself could have entered the market despite the system of rebates at issue. It is apparent from recital1004 of that decision that, in principle, the only difference between the situation of the hypothetical competitor and the actual situation of Intel on the market is that that hypothetical competitor does not have an equivalent sales base. In the light of the clarifications provided in recital1005 of the contested decision, that reference to the lack of equivalent sales base must be interpreted as meaning that, due to Intel’s status as an unavoidable trading partner, the hypothetical as-efficient competitor is likely to win from Intel only the contestable share of customer requirements for x86 CPUs.

437As the applicant correctly observes, when the Commission assessed, in the contested decision, the value of the non-cash advantages offered by the applicant in the context of examining the breadth of the rebates granted to Lenovo, its reasoning was not conducted on the basis of the hypothetical competitor being capable of selling x86 CPUs to Lenovo while also offering non-cash advantages to Lenovo on the same terms as Intel.

438In recital1466 of the contested decision, the Commission expressed the view that it was a question of assessing the price that an as-efficient competitor, which is not the dominant company, would itself have had to pay to Lenovo to compensate for the loss of the non-cash advantages offered by Intel to Lenovo, such as an extension to the hub or a warranty extension. In recital1467 of that decision, in order to justify that approach, the Commission relied on the example of the supply hub. The Commission found that, unlike Intel, which had a supply hub in China, to which certain adaptations could be made in order to offer a non-cash advantage to Lenovo, a competitor as efficient as the dominant undertaking, but which was not dominant and which was therefore of smaller scale, would not normally have had such a facility at that stage.

439Thus, the Commission proceeded on the basis of an assumption which was contrary to the foundation of the AEC test set out in recitals1003 and 1004 of the contested decision, which is based on the principle that the hypothetical competitor is as efficient as Intel, in particular from the perspective of the costs of extending a hub or a warranty. The Commission in fact conducted its reasoning by reference to a less efficient competitor, which is not, however, the relevant economic operator for assessing whether the rebate at issue is capable of having a foreclosure effect.

440None of the arguments put forward by the Commission is such as to invalidate that finding.

441The Commission– which, admittedly, refers to the fact that Intel had evaluated the amount of benefit for Lenovo at a high value (USD20 million and USD24 million respectively)– provides no response, in the contested decision, to the question of what the cost would have been for an as-efficient competitor if it had had to provide access to a supply hub or simply modify its own existing hub so as to extend it to an OEM, as Intel offered to Lenovo. The same logic applies to costs associated with a warranty extension.

442In that regard, the parties stated, in response to the questions put by the Court at the 2020 hearing, that economies of scale ought not to be taken into consideration as a differentiating factor, but that the costs of an as-efficient competitor ought to be regarded as being the same as for Intel. However, such explanations on the part of the Commission contradict the approach adopted in recitals1466 and 1467 of the contested decision, which take account of the size of the as-efficient competitor to emphasise, inter alia, that a hub comparable to that of Intel would not be in place at that stage.

443In addition, in so far as the Commission referred, before the Court, to the actual size of an as-efficient competitor’s hub (see paragraph426 above, in fine), it must be stated, as Intel submitted at the 2020 hearing, that that factor was not analysed in the contested decision. The same applies to the quantified assessments, submitted by the Commission for the first time in Annex D.39 to the rejoinder, aiming to evaluate the actual costs to Intel in relation to the non-cash advantages (see paragraphs429 and 430 above).

444The Court, however, cannot take account of those additional analyses, which were submitted during the procedure before it to substantiate the AEC test in the contested decision without substituting its own reasoning for that of the Commission set out in that decision. The case-law cited in paragraph150 above prohibits the Court from making such a substitution.

445As regards the Commission’s assertions in recital1464 of the contested decision, concerning the alleged stark discrepancy between the economic costs put forward by Intel for the grant of non-cash advantages and their value to Lenovo, it must be noted that, irrespective of the fact that the value to Lenovo is not decisive for the AEC test analysis, as is apparent from the minutes of a statement of 2June 2009 by L10, [confidential], Lenovo did not accept that the negotiations with Intel concerned an exact value for the non-cash advantages. L10 considered, in essence, that the approach calculated in USD in relation to those advantages could be radically different from the sum presented by Intel. In his view, in essence, that undertaking attempted to give itself credit for factors in respect of which it did not calculate a monetary value, such as distribution via a hub. Intel attempted to persuade it that those factors had an economic value, even though they were, rather, an operational benefit. L10 stated that he had not given any credit from a monetary perspective to those non-cash advantages. Lastly, as regards the Commission’s reference to the L10 email of 12January 2006, which acknowledged the importance of the non-cash advantages, it should be noted that they are not quantified in dollars in that email.

446It is also apparent from a series of emails dated 26November 2006 to 28November 2008, entitled ‘RE: Intel Meet Comp Response November 27 06.ppt’ that Intel’s negotiating tactics made various references to exaggerated advantages, in particular by positioning elements which it intended to provide to the business partner in any event as an advantage. In those circumstances, the Commission cannot draw the inference, even if only implicitly, as is the case in recital1464 of the contested decision, from those data alone concerning the negotiations on non-cash advantages, that the actual costs, as stated by Intel, were minimised. Similarly, it is necessary to reject as ineffective the Commission’s claim, referred to in paragraph614 of the defence and referring to Annex B.31 to the defence, that Intel had not demonstrated that there were divergences of views between Lenovo and itself regarding the value of the non-cash advantages granted. The question is what costs were necessary in order to offer them, and not Lenovo’s perception of their value.

447In addition, it is not sufficient to rely, as the Commission did in recital1464 of the contested decision and, subsequently, in paragraph614 of the defence, referring to paragraph416 of Annex B.31 to the defence, on the argument that Intel failed to explain the stark discrepancy between its alleged costs of USD3 million and the amount of USD44 million to Lenovo. It was for the Commission to assess, directly in the contested decision and not in calculations submitted for the first time before the Court, what the costs of an as-efficient competitor would have been if it had had to offer to an OEM such as Lenovo non-cash advantages equivalent to those proposed by Intel (see also paragraph444 above).

448Furthermore, in so far as the Commission carried out, for the first time before the Court, in paragraph326 of the rejoinder, referring, by way of illustration, to AnnexD.39 to the rejoinder, calculations of the costs for the situation in which account was to be taken of the as-efficient competitor having a supply hub in China, it must be noted that the result reached by the Commission regarding the costs differs, in any event, from the result set out in the contested decision, irrespective of the fact that those calculations were made out of time and do not form part of the reasons for the contested decision, which applied a different test. First, as is apparent from paragraph36 of Annex D.39 to the rejoinder, the cost to an as-efficient competitor is USD20690000, and not USD24 million as stated in recital1463 of the contested decision in relation to the supply hub. Second, as regards the warranty extension, the cost of which for an as-efficient competitor is also calculated for the first time at USD17473664 in paragraph30 of Annex D.39 to the rejoinder, that differs from the USD20 million stated in the contested decision.

449Lastly, the Commission’s assertion in paragraph327 of the rejoinder, referring to paragraphs38 to 44 of Annex D.39 to the rejoinder, that the applicant’s key argument that the cost of the two non-cash advantages, which amounted to USD3 million for Intel, contradicts Intel’s own evidence, cannot succeed.

450As regards Intel’s internal documents with references D.41 and D.42 annexed to the rejoinder, from which it is apparent, according to the Commission, that Intel estimated the costs of non-cash advantages at USD47 million rather than at USD3 million, these were not mentioned in the contested decision and do not therefore form part of the reasons for that decision. On reading recital1465 of the contested decision, it appears inconceivable that the Commission took them into consideration in its principal analysis as set out in that decision, in so far as it states in the decision that ‘Intel’s argument that the appropriate measure to be used in the as-efficient-competitor analysis is not the value of such items to Lenovo but their economic cost to Intel is based on a misunderstanding of the principles of the analysis’.

451In any event, even if the Commission’s reference to the documents mentioned in paragraph450 above had been admissible, it could not have been inferred from those documents that Intel had incorrectly minimised its costs by stating that the two non-cash advantages corresponded to USD1.7 million and USD1.3 million respectively. The documents to which the Commission refers relate to a situation in which negotiations with Lenovo were underway and in which Intel sought to demonstrate the significance of its commercial proposals, by presenting them in a favourable light to Lenovo (see also paragraphs445 and 446 above). A specific analysis of those documents, carried out subject to what has already been established, purely as a precautionary measure, demonstrates that they lack clarity and accordingly do not make it possible to uphold the Commission’s position.

452Accordingly, first, in the document entitled ‘Intel chart entitled “2006 vs. 2007 Trend”’, the advantage relating to the enlargement of the supply hub falls within the item ‘Incremental 07 Spending’ and a reference including the term ‘billing impact’ is made in that chart. However, the figure of USD24 million, concerning the hub, is included in the column entitled ‘Contra’ and not in the column entitled ‘Expense’. That indicates that what was involved was Intel’s estimate of the equivalent value of the use of the hub, as explained in paragraph71 of the Supplemental Shapiro-Hayes report and illustrated in Annex10 to that report, and not Intel’s costs of such a hub or of modifying it. Similarly, the cost of the warranty extension is calculated in paragraph70 of the Supplemental Shapiro-Hayes report and in Annex9 thereto at USD1.7 million. In those circumstances, it is not necessary to give a ruling on DrHayes’ allegations made at the 2020 hearing that, because of the limited number of x86 CPU failures, increasing the warranty from one to three years did not involve significant incremental costs.

453Second, while the tables set out in Annex D.42 to the rejoinder enable a link to be established between the costs for Intel and the advantages for Lenovo, those tables do not show the overall cost of modifying a supply hub, quantified in the contested decision at USD24 million. In any event, it cannot be ruled out that the aim of that document may have been to present the proposal in a favourable light during the negotiations with Lenovo.

454Accordingly, in the light of the errors of assessment made by the Commission, it is not necessary to assess certain additional Intel arguments regarding whether AMD actually had a hub in China, since AMD’s situation was not, in any event, decisive for the AEC test.

455Consequently, it must be concluded that the Commission erred in making a quantified assessment of the non-cash advantages offered by Intel to Lenovo, by using the amounts of USD20 million and USD24 million respectively, from which it estimated the amount of the rebates at USD180 million. That amount of USD180 million is therefore itself vitiated by an error.

456In the light of the foregoing, it must be observed that, in recital1507 of the contested decision, the Commission stated that the conclusions which it had reached as regards the capability of the rebates granted to Lenovo to have foreclosure effects were based on the comparison between the required number of units and the contestable number of units established in recital1478 of that decision as well as on the considerations in recitals1479 to 1506, which set out an alternative test for the required share on the combined segments of desktop computers and notebook computers. However, as is apparent from recitals1472, 1478 and 1503 to 1506 of the contested decision, in the context of both the comparison mentioned above and the alternative test, the Commission took into account a conditional portion of USD180 million for its analyses regarding the definition of the required share, for the purposes of comparing the required share with the contestable share of the x86 CPU units. The error in the quantified assessment of the non-cash advantages offered by Intel to Lenovo therefore affected all the component parts of the examination of the rebates granted to that OEM.

457Consequently, there being no need to assess the substance of Intel’s arguments regarding the contestable number of units to be taken into consideration, it must be found that the Commission has not established to the requisite legal standard the validity of the conclusion set out in recital1507 of the contested decision that in 2007 Intel’s rebates were capable of having or likely to have anticompetitive foreclosure effects, since even an as-efficient competitor would have been prevented from supplying Lenovo’s notebook x86 CPU requirements.

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

458The applicant submits that the AEC analysis concerning MSH in the contested decision, apart from the fact that it overstated Intel’s AAC, contains two errors concerning, first, the ‘double conditional rebate’ method (‘the double rebate method’) and, second, the conditional portion of the payments. In the applicant’s view, correcting one of those errors would demonstrate that MSH passed the AEC test.

459The Court considers it appropriate to examine first the substance of the line of argument aimed at demonstrating that the Commission erred in applying the double rebate method.

460The applicant disputes, in essence, the relevance of the figures used to apply that method and the inferences drawn from it by the Commission.

461For its part, the Commission considers that all the arguments must be rejected since no error vitiates the application of the double rebate method.

462The Commission asserts, first, that, in order to be able to sell computers of a particular brand to MSH, an as-efficient competitor would have to ensure not only that MSH was ready to purchase computers based on its CPUs, but also, and most importantly, that OEMs were ready to manufacture those computers. Therefore, in the Commission’s view, Intel’s practices at different levels of the supply chain could have a cumulative effect.

463Second, the Commission maintains that, in order to demonstrate that Intel’s payments to MSH were capable of having an anticompetitive foreclosure effect when taken together with Intel’s practice towards an OEM, it suffices to show that capability of effect by reference to a representative example of a conditional payment granted by Intel to one OEM without having to repeat the same exercise for each OEM.

464Third, the contested decision analyses the cumulation of Intel’s payments to MSH with Intel’s naked restrictions, in particular with respect to AMD-based x86 CPU Lenovo notebooks for the period from June to December 2006.

465Furthermore, the Commission maintains that Annex B.31 to the defence analyses Intel’s other arguments in detail. The Commission argues, in essence, that that annex established that (i) the contested decision provides proper justification that the rebates granted to NEC for the relevant quarter are representative of the entire relevant period; (ii) NECCI could not plausibly have provided the entire contestable share of MSH; and (iii) the contested decision does not rely on the assumption that 100% of Intel’s rebates to NEC were conditional.

466In that regard, it must be noted, as the applicant also does, that the Commission initially found, in recital1565 of the contested decision, that Table58 in recital1564 of that decision showed that, using the normal calculation method, Intel did not pass the AEC test for 1997, 1998 and 2000. As the applicant, in essence, submits, the Commission therefore acknowledged, at least implicitly, that, if the normal calculation method were used, the effective price resulting from Intel’s conditional payments to MSH was far above the AAC during the entire period of the alleged infringement, namely from 2002 to 2007.

467Subsequently, as is apparent from recitals1561 and 1566 of the contested decision, the Commission nevertheless adapted the AEC test by taking the view that, when Intel provided a conditional rebate to an OEM, an as-efficient competitor would have had to provide two payments: one to ensure that it captured the OEM’s contestable share and the other to ensure that it captured MSH’s contestable share. In taking account of that double rebate, the Commission came to the conclusion, in recital1568 of the contested decision, that Intel did not pass the AEC test during the entire period in question, except for 2004.

468It therefore follows from the recitals of the contested decision mentioned above that it is appropriate to proceed on the assumption that Intel passed the AEC test using the normal calculation method and that it was only by taking into consideration the existence of a double rebate that the Commission, using its own figures, was able to prove that Intel’s payments to MSH were capable of causing anticompetitive foreclosure during the entire period in question, except for 2004.

469As regards the assessment of those facts, it should be noted, as a preliminary point, that the applicant does not contest the double rebate method as such. The applicant acknowledges, in essence, that, in order to be able to sell computers of a particular brand to MSH, an as-efficient competitor had to ensure not only that MSH was ready to purchase computers based on its CPUs, but also, and most importantly, that OEMs were ready to manufacture those computers. Therefore, Intel’s practices at different levels of the supply chain could have had a cumulative effect.

470By contrast, the applicant disputes the figures used by the Commission to carry out its calculations. As the applicant states, the contested decision calculates the amount of the double rebate by assuming that each OEM which supplied MSH benefited from a conditional rebate equivalent to the total rebates offered to NEC in the fourth quarter of 2002 and that such OEMS would have lost the entirety of that rebate if MSH began selling computers with AMD-based x86 CPUs. On the assumption that 100% of the rebates provided to MSH were conditional, the Commission concluded that, for the whole of the period in question, except 2004, Intel’s rebates would have foreclosed an as-efficient competitor.

471The Court considers that that analysis contains two flaws, each of which is capable of invalidating the results of the AEC test for MSH based on the discounts granted by Intel to NEC in the fourth quarter of 2002.

472First, as the applicant submits, the Commission assumes, in recitals1566 and 1567 of the contested decision, that the rebates granted to NEC are an appropriate proxy for conditional rebates on all Intel-based computers sourced by MSH from any OEM. That assumption is not substantiated in any way.

473Intel states, without being contradicted by the Commission, that MSH purchased only 4% of its computer requirements from NEC during the period from 2002 to 2007 and that, apart from NEC, the main OEM suppliers of computers to MSH between 2002 and 2007 were Fujitsu, Acer, HP, Compaq, Toshiba and Medion. At the very least, the Commission’s position is necessarily based on the assumption that MSH purchased computers from OEMs other than NEC.

474However, the Commission does not claim, nor does it demonstrate, that in the segment of computers for private individuals Intel granted conditional rebates to any of the other OEMs from which MSH made its purchases, on conditions comparable to the rebates relating to computers purchased from NEC.

475It is therefore apparent that the contested decision based its analysis of the dual rebate method on the rebates granted by Intel to NEC over the course of a single quarter which represented only part of MSH’s purchases. Therefore, as the applicant submits, it must be held that the Commission’s assumption that all of MSH’s suppliers were subject to substantial conditional rebates identical to those enjoyed by NEC is unfounded and, in any event, entirely unsubstantiated.

476That conclusion is, moreover, borne out by the wording of recital1566 of the contested decision, in which the Commission simply states, in order to illustrate the double rebate method, that the ‘[Supplementary Statement of Objections of 2008] took the example of NEC as [an OEM representative of that situation]’, and by the wording of recital1567 of that decision, in which the Commission states that ‘section 4.2.3.4 assessed the Intel conditional rebates to NEC in the fourth quarter of 2002 (as that is the only quarter where sufficient data are available for the Commission to perform an analysis of the capability of the rebates to foreclose an as-efficient competitor)’. It therefore follows from those recitals of the contested decision that the Commission appears to have relied on the example of NEC and on one single quarter not simply because of its relevance, but because it was the only quarter for which it had been able to obtain information in order to carry out the AEC analysis for MSH.

477The Commission claims, in that regard, that it is sufficient to refer to a single representative example, since the AEC test is used solely to demonstrate the anticompetitive capability– and not the actual effects– of a commercial practice. However, the Court considers that, when the Commission chooses a quantitative approach to demonstrate that capability, it must ensure that the data used are reliable and must at least explain how such data may be extrapolated. The Commission, however, has in no way proven that NEC’s figures were ‘representative’ for all OEMs.

478Second, and in any event, as the applicant submits, the Commission’s analysis assumes that NEC and all the other OEM suppliers of MSH benefited, between 1997 and 2007, from conditional rebates identical to the rebate received by NEC for a single quarter. That implies, therefore, that, even if they were representative for all OEMs, the rebates granted to NEC for the fourth quarter of 2002 were stable over a 10-year period. However, first, the Commission has in no way proven that that was the case. The only justification upon which the Commission appears to rely is that set out in recital1567 of the contested decision, according to which the only data available to it were data concerning NEC’s rebates in the fourth quarter of 2002. However, as the applicant points out, the fact of not being able to obtain additional evidence does not permit the Commission to found its conclusions on assumed facts. Second, it must be recalled that, as is apparent from paragraphs404 to 411 above, it has been demonstrated that, as regards NEC, the Commission made an error of assessment in extrapolating the results which it had reached for the fourth quarter of 2002 for the whole of the alleged infringement period.

479Therefore, without there being any need to give a ruling on the other arguments put forward by the parties as referred to in paragraphs458 to 465 above, it must be held that the Commission erred in finding that Intel’s conditional rebates to NEC in the fourth quarter of 2002 constituted sufficient data to carry out the AEC test for MSH over the entire infringement period.

480Since the Commission has not demonstrated that the conditions for extrapolation were satisfied, it must therefore be held, without there being any need to give a ruling on the second argument concerning the conditional portion of the payments (see paragraph458 above), that the applicant is justified in maintaining that the application of the AEC test concerning MSH is vitiated by an error of assessment which applies to the entire period examined.

481In the light of the foregoing, the Commission has not established to the requisite legal standard the validity of the conclusion, set out in recital1573 of the contested decision, that, on the basis of the considerations set out in recitals1559 to 1572 of that decision, during the period from the last quarter of 1997 to 12February 2008, the Intel payments to MSH were capable of having or likely to have anticompetitive foreclosure effects, either in themselves or as a reinforcing factor of Intel’s conduct vis-à-vis other actors on the market, since even an as-efficient competitor would have been prevented from entering the relevant part of the market.

(f)Conclusions on the AEC test

482In the light of all the considerations set out in paragraphs179 to 480 above, there being no need at all to assess the applicant’s various claims concerning the cost analysis, the Court must accept the applicant’s argument that the AEC analysis carried out by the Commission in the contested decision is vitiated by errors.

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

483According to the applicant and ACT, the Commission’s findings in the contested decision regarding the foreclosure capability of Intel’s rebates do not take proper account of all the criteria set by the Court of Justice in paragraph139 of the judgment on the appeal. The fact of failing to take account of even one of those criteria should, they argue, result in the General Court annulling the contested decision.

484The applicant and ACT maintain that, of those five criteria, at least three were not examined appropriately. They submit that, although the contested decision contains an analysis of the first and third criteria referred to in paragraph139 of the judgment on the appeal, namely the extent of Intel’s dominant position on the relevant market and the conditions and arrangements for granting Intel’s rebates, it fails, in any event, to analyse the criteria relating to the share of the market covered, the duration and amount of the rebates or the existence of a strategy designed to exclude from the market competitors that are at least as efficient as the dominant undertaking.

1.The coverage rate

485In recital1577 of the contested decision, in Section 4.2.4 which relates to the strategic importance of the OEMs which benefited from Intel’s rebates, the Commission stated, in essence, that, because of their market share, their strong presence in the more profitable segment of the market and their ability to legitimise a new processor in the market, some OEMs, in the present case Dell and HP, were strategically more important than others in providing x86 CPU manufacturers with access to the market. The Commission also took the view, in recital1597 of the contested decision, that the OEMs targeted by Intel’s conduct held a significant part of the market and that, moreover, they were strategically more important than other OEMs, which had had a more significant impact on the overall market than would have corresponded to their aggregate market share alone. The Commission concluded that the coverage of the abusive practices had to be regarded as significant.

486The applicant and ACT submit, in essence, that, by simply stating in recital1597 of the contested decision that the OEMs targeted by Intel’s conduct held a significant part of the market and that they were strategically the most important, which had a more significant impact on the overall market than would have corresponded to their aggregate market share alone, the contested decision did not properly take account of the criterion of the coverage rate for the purpose of analysing whether Intel’s rebates and payments were capable of leading to foreclosure.

487Furthermore, the applicant states that that finding in the contested decision was set out following the conclusion, in recital1001 of that decision, that Intel’s rebates and payments fulfilled the criteria to be regarded as abusive, whereas the judgment on the appeal requires that the Commission analyse the market coverage before making a finding of abuse. In addition, the applicant and ACT argue that the evidence relied on by the Commission was not sufficient for the view to be taken that the market share covered by Intel’s conduct was significant.

488The Commission disputes the substance of the arguments put forward by the applicant.

489First, the Commission observes that market coverage was considered in Section4.2.4, of the contested decision, in the context of the strategic importance of the OEMs which received rebates from Intel. The Commission dwells in particular on the fact that, although paragraph139 of the judgment on the appeal simply identifies market coverage as a factor, this must be applied in the context of each case and, in the present case, the strategic importance of the part of the market covered is to be taken into consideration in assessing that factor as demonstrating the capability of Intel’s loyalty rebates to foreclose competition. Similarly, it is necessary to take account of the fact that Intel was an unavoidable trading partner for the OEMs, which gave Intel significant leverage over its customers, since it would have been unrealistic for them to switch to an all AMD or majority AMD product line-up.

490Second, the Commission maintains that, as regards the share of the market covered, the applicant no longer relies on the assertion, set out in paragraph115 of the application, that the market coverage of Intel’s practices did not exceed 2% in any year, but appears to accept the fact that the Court found, in paragraph194 of the initial judgment, that market coverage was approximately 14% on average during the period in which the infringement was committed and submits that it could be inferred from certain evidence that the market shares of the OEMs concerned by the rebates at issue exceeded 25%.

491Third, as regards the complaint raised by Intel in its observations that the finding in recital1597 of the contested decision was set out after the conclusion had been reached, in recital1001 of that decision, that those rebates and payments fulfilled the criteria to be regarded as abusive (see paragraph487 above), the Commission takes the view that the applicant mischaracterises the contested decision. Recital1001 of that decision relies on the judgment of 13February 1979, Hoffmann-La Roche v Commission (85/76, EU:C:1979:36), according to which loyalty rebates infringe Article102 TFEU. However, as set out in recital1597 of the contested decision, the Commission states that the subsequent analysis shows that targeting such strategically important OEMs has a more significant impact on the overall market than would correspond to their aggregate market share alone. Consequently, the coverage of the abusive practices has to be regarded as ‘significant’ and recital1616 of the contested decision reaches the overall conclusion that the loyalty induced by the rebates had complementary effects which significantly diminished the ability of other competitors to compete and sell their products on the merits of their x86 CPUs.

492It should be recalled that it is apparent from paragraph139 of the judgment on the appeal that the share of the market covered by the contested practice is one of the criteria which the Commission must take into account for the purposes of assessing the foreclosure capability of rebates and conditional payments (see paragraphs119 and 125 above).

493In the first place, in the circumstances of the present case, it cannot be ruled out that Section 4.2.4 of the contested decision, concerning the strategic importance of the OEMs which benefited from Intel’s rebates, might be relevant in examining the coverage rate. That section deals with certain factors which are a priori relevant to examining the foreclosure capability of a system of rebates, such as targeting certain pricing practices at the most profitable segments of the market or using, to the detriment of a competitor, the largest market operators’ power to legitimise a product.

494The fact remains that, contrary to the Commission’s assertions, and regardless of whether the finding in recital1597 of the contested decision was set out after the conclusion had been reached in recital1001 of that decision that Intel’s rebates and payments fulfilled the criteria to be regarded as abusive, the content of Section4.2.4 of the contested decision, concerning the strategic importance of OEMs which benefited from Intel’s rebates, and in particular recital1597 of that decision upon which the Commission relies in order to find that the share of the market covered had been examined, cannot be interpreted as constituting in itself sufficient examination, in the circumstances of the present case, of the share of the market covered by the contested practice, within the meaning of paragraph139 of the judgment on the appeal.

495Irrespective of the fact that the Commission relied on the market shares of certain OEMs and on the assumption that the Commission could legitimately confine itself to relying on the market shares of certain OEMs rather than examining the share of the market covered by the contested practice, as mentioned in paragraph139 of the judgment on the appeal, recitals1578 to 1580 of the contested decision take account solely of Dell’s and HP’s market shares, and exclude the other OEMs concerned by the contested practice, as pointed out by the applicant and ACT. It should be added that the market shares taken into account cover only the period from the first quarter of 2003 to the final quarter of 2005. Therefore, not only does that decision cover only one part of the entire period covered by that decision, that is to say, from October 2002 to December 2007, but it also disregards the period from 2006 to 2007, during which Lenovo and MSH were concerned. Lastly, as the applicant and ACT point out, it is apparent from recitals1578 to 1580 of the contested decision that the figures for market shares relied on by the Commission take account of Dell’s and HP’s worldwide market shares in all segments, despite the fact that the sole contested practice as regards HP relates to corporate desktops, as stated in Article1(b) of the contested decision.

496In the second place, in its main observations, the Commission relies on the Court’s finding, in paragraph194 of the initial judgment, that the market coverage was approximately 14% on average during the period of the infringement and submits that it could be inferred from certain evidence that the market shares of the OEMs concerned by the rebates at issue exceeded 25%. The Commission also states that ‘Intel’s complaint… that the Commission relied on HP’s market share across all segments is unfounded; the [contested] decision does not rely on any specific figure as regards HP and the [initial] judgment’s reliance on the average coverage of 14%, contrary to Intel’s assertion… does not take account of the segment-specific loyalty rebate with HP’.

497However, it is necessary to reject the Commission’s argument based on the fact that the Court found, in paragraph194 of the initial judgment, that market coverage was approximately 14% on average during the period in which the infringement was committed, which the applicant did not dispute, or that the market shares of the OEMs concerned by the rebates exceeded 25%.

498It must be stated that the rates of 14% or 25% do not appear anywhere in the contested decision subsequent to an examination of the coverage rate. Consequently, for the purposes of reviewing the legality of the contested decision, as regards the share of the market covered by the contested practice, the Court is not in a position to place reliance on those rates, even if they are derived from evidence in the file, since they were not included in the contested decision and, by definition, the Commission could not have acted on the basis of that evidence.

499Consequently, there being no need to give a ruling on the Commission’s arguments regarding HP’s market share, it must be held that the Commission failed to determine the share of the market covered by the practice at issue, contrary to the requirement placed on it pursuant to paragraph139 of the judgment on the appeal. It should be added that that is, moreover, contrary to the Commission’s own guidelines on the analysis of cases falling within the scope of Article102 TFEU, and in particular contrary to paragraph20 of the Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings (OJ 2009 C45, p.7).

500In the light of the foregoing, it must therefore be concluded that the applicant and ACT are correct in maintaining that the contested decision is vitiated by errors in that it did not consider properly the criterion relating to the share of the market covered by the contested practice.

2.Duration and amount of the rebates

501In the application and in its main observations, Intel criticises the failure to analyse, in the contested decision, the importance, first, of the duration of the conditional rebates and payments offered and, second, of the amounts of those rebates and payments. Intel maintains, in particular, that it is not possible, in order to assess the foreclosure effects of the rebates at issue on an as-efficient competitor, to accumulate short-term agreements concluded with the OEMs and MSH. In its view, in order to do so, it is necessary to take into consideration the duration of each of those agreements.

502The Commission submits that the conditions for granting the rebates and various payments granted by Intel were analysed, for each OEM, in SectionVII.4.2.2 of the contested decision. Those analyses concerned the nature and modus operandi of the exclusivity or quasi-exclusivity conditions to which the payments and rebates were subject, the amounts of the rebates and, lastly, the decisive nature of the conditionality of the payments and rebates for each of the OEMs, and for MSH, when they assessed the possibility of obtaining part of their supplies of x86 CPUs from AMD. In particular, the Commission states in the defence that the brevity of the notice of termination period for certain agreements, including those with HP, did not change the harmful effects on competition. Accordingly, if Intel had terminated the HPA agreements following contravention by HP of its quasi-exclusivity obligation, HP would have lost the rebates over the entire remaining duration of the agreement and, at least potentially, over the duration of the extension of that agreement.

503In its main observations, the Commission submits, in essence, that the applicant has not challenged the passage in the initial judgment which is relevant in the light of the judgment on the appeal, namely the findings in paragraph195 of the initial judgment, in which the Court considered the implications of the duration of the rebate agreements for their foreclosure capability. The Commission therefore submits that it is necessary to regard as definitive the findings in paragraph195 of the initial judgment, to the effect that the duration of Intel’s agreements did not impair their ability to foreclose competition.

504The Commission, in its main observations, also submits, with regard to paragraph195 of the initial judgment, that, even if Intel were permitted to renew its challenge to the contested decision by reference to the assessment of the significance of the duration of its agreements, there is no reason to depart from the conclusion reached in the initial judgment. First, according to the Commission, if, as found in the contested decision, Intel fails the AEC test, Intel’s insistence on the OEMs being able to withdraw from the loyalty rebate agreements is illogical. An as-efficient competitor simply could not compete. Second, even if Intel were to pass the AEC test, it is inherent to an as-efficient competitor’s bid for the OEMs’ business in such circumstances that it would have to accept a much lower level of profitability on those sales than Intel. Third, the Commission reiterates the allegation that the overall duration of an Intel loyalty rebate scheme would be a factor in how long an as-efficient competitor would have to accept reduced profitability in ‘capturing an OEM’s custom from Intel’ on those sales. Accordingly, for HP, any competitor wishing to displace Intel would have to be prepared to offer terms which would offset the loss of Intel’s rebates over at least the full term of the HPA1 agreement. Moreover, the Commission maintains that each set of agreements with the OEMs ran for a period sufficient for Intel’s actions to be capable of foreclosing competition, since those agreements focused on the most profitable periods for sales of x86 CPU processors, early in the life cycle of a new design. The Commission also asserts that the duration of Intel’s practices cannot be isolated from their timing, since they sought to overcome Intel’s inability to produce a timely technical response to AMD’s 64-bit x86 CPUs.

505During the 2020 hearing, the Commission submitted a document to the Court concerning the recitals of the contested decision which, in its view, evaluated the various criteria as set out in paragraph139 of the judgment on the appeal, including duration.

506In the first place, it is necessary to reject the argument raised by the Commission in its main observations that the complaints regarding the duration and amount of the conditional rebates and payments are inadmissible. It is sufficient to note that the applicant’s arguments put forward in its main and supplementary observations in that regard relate clearly to those put forward in paragraphs102 and 111 to 114 of the application. Consequently, in accordance with the case-law cited in paragraph106 above, those complaints are admissible.

507In the second place, it is apparent from paragraph139 of the judgment on the appeal that the analysis of the duration and amount of the conditional rebates and payments, which are the object of the contested practice, is one of the criteria which must be taken into account in assessing the foreclosure capability of those practices.

508First, it is true that, in the contested decision, the Commission examined, on several occasions, factors relating to the duration of the rebates.

509First of all, recitals1013 to 1035 of the contested decision concern the time horizon for the AEC test. The Commission found, in particular, in recitals1015 and 1017 of the contested decision, that, in certain circumstances, there could be quarterly adjustments to rebate practices and stated, in recitals1017 to 1028 of the contested decision, that, because of the fact that the relevant market was very fast-moving, innovation in the relevant sector made it difficult or even impossible to make long-term predictions. Similarly, recitals1025 to 1027 of the contested decision contain a reference to the duration of the contracts and to the fact that it was necessary regularly to ‘refresh’ product cycles.

510Next, recitals201 and 202 of the contested decision indicate that the Commission considered that some of the relevant negotiations between Intel and the OEMs were conducted on a quarterly basis. Those negotiations also concerned a relatively short period, which could allow an as-efficient competitor to offer its own x86 CPUs to those OEMs more easily. Similarly, in recitals965 to 968 of the contested decision, the Commission examined Intel’s argument that the 30-day termination notice provision in the HPA agreements gave HP greater freedom to compare its offers with those of AMD, and indicated that Intel’s status as an unavoidable trading partner and the effects of its rebates resulted in that argument being rejected. At the 2020 hearing, the Commission stated that, in some cases, as regards HP, there had been several renewals of the agreements with Intel on a monthly basis. As regards Dell, the Commission stated, in recital1227 of the contested decision, that, due to the absence of any written contract with Intel, as regards the rebates granted under the Meet Competition Programme, those rebates were the subject of ‘constant’ oral renegotiation, such that Intel had great flexibility to change discounts.

511The fact remains that, first, the purpose of recitals1013 to 1035 of the contested decision was solely to define the time horizon on which the OEMs based their decisions regarding their supply requirements for x86 CPUs as an assumption underlying the calculation of the contestable share of the rebates for each of the OEMs concerned. The Commission concluded that, in relation to the AEC test, it would proceed on the assumption that the relevant time horizon was one year.

512Consequently, the time horizon was used in that regard to determine the methodology for calculating an OEM’s contestable share, which then had to be compared with other factors in the AEC test in order to assess whether the rebates at issue could have a foreclosure effect. Such an examination does not therefore constitute an analysis of the duration of the rebates as a factor which is capable, in itself, of demonstrating their ability to have a foreclosure effect.

513Second, it is apparent from recitals201, 202, 965 to 968 and 1227 of the contested decision that the Commission examined the duration and form of the OEMs’ commitments to Intel giving a right to rebates as factors capable of encouraging or hindering a new competitor’s entry into the market, having regard in particular to the temporal scope of those commitments or Intel’s ability to pay or adjust its rebates within a short time frame.

514However, although those aspects of the time horizon appeared to it to be relevant, the Commission examined them only in a haphazard and limited manner, in recitals201, 202, 965 to 968 and 1227 of the contested decision. It did not carry out a thorough and exhaustive examination for all OEMs of those aspects in so far as they were capable of determining or strengthening the capability of Intel’s pricing practices at issue to have a foreclosure effect.

515It is apparent from the foregoing that the Commission did not examine the duration of the rebates as a factor intrinsically relevant to determining the capability of Intel’s pricing practices at issue to have a foreclosure effect.

516Second, the Commission asserts, in essence, that, even if the AEC test did not demonstrate the capability of the rebates at issue to have a foreclosure effect, it is the total period during which the applicant applied the rebates and exclusivity payments to OEMs which should be considered and that, in so far as the rebates lasted one year for Lenovo and several years for the other OEMs and for MSH, the conclusion must be drawn that a competitor of Intel in the x86 CPU market would have had to accept a drop in profitability and a much lower level of profitability on those sales as compared with Intel. In the Commission’s view, those considerations are apparent from paragraphs93 and 195 of the initial judgment and are therefore definitive.

517In that regard, first, it is apparent from paragraph81 above that the operative part of the judgment on the appeal sets aside the entirety of the initial judgment. Consequently, the Court must, following the referral back, carry out a fresh examination of the parties’ arguments concerning the duration of the rebates, without being bound by paragraphs93 and 195 of the initial judgment, which it does not accept for its own account.

518Second, it is apparent from paragraphs138 and 139 of the judgment on the appeal that, in the case where the undertaking concerned submits, during the administrative procedure, on the basis of supporting evidence, that its conduct was not capable of restricting competition and, in particular, was not capable of producing the alleged foreclosure effects, the Commission is required to assess all of the criteria referred to in paragraph139 of that judgment, and not solely the criterion relating to the duration of the rebates set out in that paragraph. Accordingly, the sole reference to the period during which the rebates were granted to the OEMs and MSH is not sufficient, in itself, notwithstanding the conclusions which may be drawn from the AEC test, to justify definitive conclusions as to the foreclosure effects thereby produced.

519Third, the Commission cannot succeed in its assertion that the duration of Intel’s practices cannot be isolated from their timing, since they sought to overcome Intel’s inability to produce a timely technical response to AMD’s 64-bit x86 CPUs. For the same reasons as those set out in paragraph518 above, that argument, even if it appears as such in the contested decision, is not in itself sufficient to justify definitive findings as to the foreclosure effects thereby produced.

520There being no need to rule on the applicant’s arguments concerning the amounts of the rebates, it is apparent from the foregoing that the Commission erred in failing to examine, in the contested decision, the duration of the rebates as evidence making it possible to determine the capacity of Intel’s pricing practices at issue to have a foreclosure effect.

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

521In the light of all the considerations set out in paragraphs485 to 520 above, there being no need to analyse the applicant’s complaints regarding the criteria concerning the amount of the rebates and the strategy aiming to exclude competitors from the market, it must be concluded that the applicant is justified in maintaining that the Commission’s analysis in the contested decision of the criteria mentioned in paragraph139 of the judgment on the appeal is vitiated by a number of errors. The Commission did not consider properly the criterion relating to the share of the market covered by the contested practice and did not analyse correctly the duration of the rebates.

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

522It is apparent from paragraphs124 to 126 above that, although a system of rebates set up by an undertaking in a dominant position on the market may be characterised as a restriction of competition, since, given its nature, it may be presumed to have restrictive effects on competition, the fact remains that what is involved is, in that regard, a mere presumption and not a per se infringement of Article102 TFEU, which would relieve the Commission in all cases of the obligation to examine whether there were anticompetitive effects. Where an undertaking in a dominant position submits, during the administrative procedure, on the basis of supporting evidence, that its conduct was not capable of restricting competition and, in particular, was not capable of producing the alleged foreclosure effects, the Commission must analyse the foreclosure capability of the system of rebates by applying the five criteria listed in paragraph139 of the judgment on the appeal. In addition, where the Commission has carried out an AEC test, that test is one of the factors which the Commission must take into account in assessing whether the system of rebates is capable of restricting competition.

523In the present case, the applicant submitted, during the administrative procedure, on the basis of supporting evidence, that the rebates at issue were not capable of producing the alleged foreclosure effects. In recitals1002 to 1573 of the contested decision, the Commission carried out an AEC test and, in the light of the results of that test, concluded, in recitals1574 and 1575 of that decision, that Intel’s rebates and payments at issue were capable of having or likely to have anticompetitive foreclosure effects, since even an as-efficient competitor would have been prevented from supplying Dell, HP, NEC and Lenovo for their x86 CPU requirements or from having MSH sell computers equipped with its x86 CPUs.

524However, it follows from all of the foregoing that, first, the AEC test carried out in the contested decision is vitiated by errors and, second, as regards the criteria mentioned in paragraph139 of the judgment on the appeal, the Commission did not consider properly the criterion relating to the share of the market covered by the contested practice and did not analyse correctly the duration of the rebates.

525It should be noted, as regards the rebates granted to HP, that it has been held, in paragraph334 above, that the Commission did not establish to the requisite legal standard its finding that, during the period from November 2002 to May 2005, the rebate which Intel granted to HP was capable of having or was likely to have an anticompetitive foreclosure effect, since it has not demonstrated that those effects were present for the period between 1November 2002 and 31September 2003. Even if it were necessary to infer that the AEC test could be regarded as conclusive for part of the period from November 2002 to May 2005, that could not demonstrate to the requisite legal standard the foreclosure effect of the rebates granted to HP, since the Commission did not consider properly the criterion relating to the share of the market covered by the contested practice and did not analyse correctly the duration of the rebates.

526Therefore, the Commission is not in a position to determine that the applicant’s rebates and payments at issue were capable of having or likely to have anticompetitive effects and that they therefore constituted an infringement of Article102 TFEU.

527Consequently, the Court considers that the grounds of the contested decision are not capable of serving as a basis for Article1(a) to (e) of that decision.

528Furthermore, in reply to a question from the Court of 2April 2012, seeking to ascertain, as regards a possible adjustment to the amount of the fine should the contested decision be the subject of annulment in part, the relative value of the infringements consisting of the exclusivity payments compared with the infringements consisting of the naked restrictions, the Commission, in a reply lodged on 8May 2012, replied solely in relation to the gravity of the infringements, arguing that it had assessed the conduct in question as a whole and had come to the view that those infringements complemented and mutually reinforced one another.

529Since the Court is not in a position to identify the amount of the fine relating solely to the naked restrictions, Article2 of the contested decision must therefore also be annulled.

530Article3 of the contested decision must be annulled in so far as it concerns the exclusivity rebates.

531The action is dismissed as to the remainder, having regard, in particular, to the findings in the initial judgment which the Court accepts, as set out in paragraphs96 to 98 above.

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

532In the light of the foregoing, it is not necessary to give a ruling on the second head of claim, put forward in the alternative.