Opinion of the Advocate General — ECLI:EU:C:2016:788
Date: 2016-10-20
Language of the case: English
Subject matter: Competition;Dominant position
Procedure: Action for annulment;Appeal - successful;Appeal against penalty

summary of the topics addressed should have been placed in the file. The appellant could then have requested access to that document. (131) 244. Nonetheless, in the General Court’s view, that procedural irregularity was cured by the fact that, during the administrative procedure, a non-confidential version of the note to the file was made available to Intel and that it was offered the opportunity to submit its observations on that document. That note, which was intended as an internal summary of the topics discussed for the members of the Commission’s services dealing with the case, contained the names of the participants and ‘a brief summary of the subjects addressed’. (132) 245. The appellant argues that this was an error in law not only because the Commission was required to record the substance of the meeting in question, but also because the note did not, contrary to what was held by the General Court, record a ‘brief summary of the subjects addressed’. 246. I agree. 247. As a matter of principle, a note of the kind described in the judgment under appeal cannot, under any circumstances, remedy a breach of an essential procedural requirement. Crucially, as the General Court admitted in the judgment under appeal, that note amounts to a succinct summary of the topics discussed during that meeting. (133) By contrast, it does not spell out the substance of the interview. The Commission itself acknowledges that fact. Most fundamentally, however, that note is silent on the content of the information provided by Mr D1 during the meeting about the issues referred to therein. 248. In my view, such a note cannot cure a breach of Article 19 of Regulation No 1/2003, read in conjunction with Article 3 of Regulation No 773/2004. 249. It cannot be overemphasised that the information contained in the file about an interview must be sufficient to ensure that the rights of defence of the undertakings accused of infringing EU competition rules are respected. That is manifestly not the case here. I shall elaborate further on that issue in point 257 et seq. below. 250. Consequently the question arises whether the procedural error resulting from an infringement of Article 19 of Regulation No 1/2003, read in conjunction with Article 3 of Regulation No 773/2004, may lead to the illegality of the decision at issue in relation to the findings made concerning Dell. Contrary to what the General Court ruled, (134) the appellant thinks it should. ACT also shares that view. True, the appellant’s arguments relate to reasoning that is included in the judgment under appeal for the sake of completeness. It could therefore be argued that those arguments are ineffective and cannot lead to that judgment being set aside. (135) However, to the extent that the Court agrees with me that the General Court erred in holding that (1) the meeting in question was not an interview within the meaning of Article 19 of Regulation No 1/2003 and that (2) the note to the file cured any procedural error stemming from the Commission’s decision not to record that meeting, the Court must also consider the reasoning relating to the consequences of a possible procedural irregularity in the judgment under appeal. (c) The consequence of the failure to record the meeting in question 251. According to the judgment under appeal, the present situation can be distinguished from that underlying Solvay, (136) a case on which the appellant primarily relies. In that case, the Commission had lost several documents after the close of the administrative procedure. The undertaking in question had not had access to those documents during the procedure before the Commission. In those circumstances, the Court ruled that a procedural error of that kind justifies the annulment of the Commission decision. The yardstick for such an annulment was expressed in the following terms: a procedural error constitutes a basis for annulment where it cannot be excluded that the (lost) material would have enabled the undertaking concerned to offer an interpretation of the facts different from that adopted by the Commission that could have been useful for its defence. (137) 252. In the General Court’s view, however, the statement of the Court in Solvay could not be transposed to the present set of circumstances. This was so because, unlike in Solvay, the content of the meeting in question could be reconstituted. (138) That is why, pursuant to the case-law dealing with access to the file, (139) the General Court required Intel to adduce prima facie evidence that the Commission had ‘failed to record exculpatory evidence which was at variance with the thrust of the direct documentary evidence on which the Commission relied in the [decision at issue] or, at the very least, sheds different light on it’. A mere hypothesis concerning the relevance of the information provided during the meeting in question was not regarded as sufficient. (140) 253. Indeed, it is settled law that where access to a part of the file has been withheld during the administrative procedure, but access has nevertheless been granted during judicial proceedings, the relevant yardstick is, as a matter of principle, whether the information withheld could have been useful, in one way or another, for the undertaking’s defence. It is not required that that information would have led to a decision different in content. (141) Rather, it must be shown that the undertaking would have been better able to ensure its defence had there been no error. (142) 254. That rule only applies, however, where no direct documentary evidence has been used as evidence. Where the Commission has relied on direct documentary evidence in the contested decision, the undertaking concerned must show that the Commission has failed to record exculpatory evidence which is at variance with the thrust of the direct documentary evidence, or at least sheds a different light on it. (143) In other words, in so far as direct documentary evidence has been employed by the Commission to inculpate the undertaking concerned, the burden of proof is particularly difficult to satisfy. 255. The question of whether such an approach is, generally speaking, warranted is beyond the scope of this Opinion. Yet, placing such a requirement on the appellant in the present case is in my view clearly wrong in law. That is because the burden of proof thus placed on the undertaking concerned is quite simply impossible to fulfil. The correct approach is to ask, as the Court’s statement in Solvay requires, whether it can from the outset be excluded that the information to which the undertaking concerned has not had access could have been useful for that undertaking’s defence. 256. In the present case, that question must be answered in the negative. 257. In Solvay, there was no conceivable way of reconstructing the content of the missing files from other sources. Moreover, the Commission had itself admitted that the missing files in all likelihood contained relevant information for the undertaking’s defence (more specifically replies to requests for information). (144) 258. In the present case, the meeting in question was not recorded adequately, as I have explained above. Nevertheless, the appellant was given access to the non-confidential version of the note to the file and the so-called follow-up document during the administrative procedure. That document contained Dell’s written responses to the questions put to Mr D1 during the meeting in question. Later, during the proceedings before the General Court, access to the confidential version of the note was given to the appellant. Those two documents provided — in the General Court’s view — sufficient indication of what was discussed during the meeting. On the basis of those documents, it concluded that the meeting disclosed no new exculpatory evidence that the appellant could have employed in its defence. (145) 259. However, the information that can be deduced from those documents regarding what took place during the meeting in question remains mere speculation, as the judgment under appeal amply shows. (146) As the analysis of the information available in the judgment under appeal illustrates, where no adequate record of the meeting exists, it is not possible to tell with certainty what was discussed and to what extent that might have been exculpatory, inculpatory, or indeed neutral. (147) 260. Judicial review cannot be based on assumptions about evidence. 261. It is certainly true, as the Commission points out, that an analysis of whether a breach of the rights of the defence ought to lead to the annulment of the Commission’s decision begins with the objections raised against the undertaking in question and the evidence which had been disclosed in support of those objections. (148) Otherwise, it would always be possible to argue that information not contained in the file could have been useful for the undertaking concerned. (149) 262. Bearing in mind the Commission’s objections vis-à-vis Intel in the case at hand, there is little doubt as to the relevance of the meeting in question. Indeed, as noted by the General Court, the note to the file as well as the follow-up document show that issues relevant for establishing whether Dell received anticompetitive loyalty rebates from the appellant were discussed during the meeting. (150) 263. In situations like those, the burden of proof remains — generally speaking — on the undertaking concerned. (151) As the Commission observes, the undertaking must present the facts and adduce the evidence to prove that it could have used in its defence documents to which it was denied access during the administrative procedure. However, that is so where documents have been withheld during the administrative procedure and where the content of those documents could later be established and reviewed by the Court. (152) As Advocate General Kokott observed in Solvay, the reason for this is that the undertaking concerned can in such circumstances indicate the authors and the nature of the document that has been withheld from it. But not only. More fundamentally still, in such circumstances, the undertaking concerned is also able to describe the content of those documents. (153) 264. The situation here is different. The identity of the author and the nature of the meeting are known on the basis of the note to the file. Nonetheless, the content of the answers given by Mr D1 to the questions put to him by the Commission remains obscure. Admittedly, as the General Court observed, the note to the file as well as the follow-up document shed some light on the specific topics touched upon during the meeting in question. However, those documents are not sufficient to reconstruct ex post the evidence given, namely what was actually said during that meeting. 265. Although the judgment under appeal does not address the issue explicitly, it is only possible to come to the opposite conclusion if one assumes that Mr D1 and Dell are one and the same and that he could only have reiterated Dell’s position on the topics discussed. Account taken of his status as a senior executive within Dell, that assumption may certainly be correct. 266. However, that assumption may also be incorrect. 267. Contrary to what the Commission appeared to suggest at the hearing, it is just as likely that Mr D1 expressed his personal view on the topics addressed during the meeting in question. (154) We simply do not know. That is why it cannot be ruled out that the meeting shed a different, or indeed new, light on the conditionality of the rebates offered to Dell. Instead of acknowledging that possibility, the General Court placed on the appellant the arguably impossible task of proving that the unrecorded meeting disclosed exculpatory evidence that could have shed a different light on the evidence provided by the Commission in support of its objections. For obvious reasons, it concluded that the appellant had not been able to succeed in that task. 268. On that basis, I must conclude that the fourth ground of appeal ought therefore also to be upheld. 269. If the Court were to disagree with me, I would nevertheless caution against rejecting the fourth ground of appeal, for the following reasons. 270. Let us assume, for the sake of argument, that the evidence in question could be reconstituted to the requisite legal standard ex post, as the General Court held in the judgment under appeal. According to the General Court, the appellant had therefore to show that the evidence in question could call into question the ‘direct documentary evidence’ that had already been determined as sufficient to condemn Intel for an abuse of a dominant position regarding the rebates offered to Dell. (155) That approach rests on a fallacy. It wrongly assumes that the evidence that has been withheld during the administrative procedure must necessarily possess a weaker probative value than the evidence that the Commission presented in support of its finding of abuse. More specifically, the problem stems from the excessively broad interpretation of the concept of ‘direct documentary evidence’ in the judgment under appeal. 271. To my knowledge, that concept has not been defined explicitly by the Court. Nonetheless, the case-law provides helpful indication as to its scope. 272. Generally speaking, the concept of direct documentary evidence is employed in the case-law in the context of Article 101 TFEU to describe certain types of evidence (as opposed to, for example, circumstantial or economic evidence) that the Commission may use to establish that an infringement has been committed, for instance that specific undertakings have taken part in a cartel or a related practice contrary to Article 101 TFEU. (156) 273. Unlike circumstantial evidence, (157) direct documentary evidence emanates, as a rule, from the undertaking(s) suspected of having infringed EU competition rules and Article 101 TFEU in particular. Typically, such evidence takes the form of a document that in and of itself points to the existence of a cartel or a related practice (or the participation of specific undertakings in such a practice). That would be the case of, for example, a memorandum on an agreement between participants, exchange of emails between participants concerning pricing or, indeed, minutes of meetings concerning such practices. (158) Where the Commission has relied on such evidence to establish an infringement or the participation of undertakings in an infringement, the undertakings must — for the purposes of annulment of the decision in question — prove that the evidence that was inaccessible to them during the administrative procedure was at variance with the thrust of the direct documentary evidence presented. (159) 274. The evidence relied upon by the Commission in the decision at issue to establish the conditionality of the rebates granted to Dell can, at best, be described as circumstantial or presumptive. (160) In fact, a point that should not be overlooked is that the ‘exclusivity rebates’ at issue in the present case (including those granted to Dell) were considered to be de facto conditional on exclusivity. That is because the rebates were not based on a formal exclusive supply obligation. (161) Rather, the conditionality of the rebates offered to Dell was inferred (indirectly) from the level of the rebates. (162) Special relevance was also given to Dell’s impression of the risks involved in switching part of its supplies to a competitor. (163) At the risk of stating the obvious, such evidence can hardly be described as ‘direct documentary evidence’ regarding the conditionality of the rebates in question. 275. In the absence of any written document attesting to the existence of an exclusive supply obligation, accepting any piece of written evidence as ‘direct documentary evidence’ of an abuse of a dominant position contrary to Article 102 TFEU would in my view gravely undermine the rights of defence of the undertaking concerned: it would not suffice for an undertaking to show that a piece of evidence to which it had not been given access during the administrative procedure could have been useful for its defence. In addition, that undertaking would have to show (as the General Court required in the judgment under appeal) that the withheld evidence was at variance with the thrust of the evidence presented by the Commission to support its finding of abuse. 276. Bearing that in mind, I am firmly convinced that circumstantial evidence of the kind referred to in the decision at issue must be assessed as a whole (before it can be decided whether the bulk of evidence presented suffices to prove an abuse of dominance). For the purposes of annulment of the decision at issue, the undertaking concerned must in such circumstances simply show that it could have used, in one way or another, the withheld evidence for its defence, and not that that evidence is at variance with the thrust of the evidence presented by the Commission to establish the infringement. (164) 277. Therefore, I conclude that, even under this alternative, the fourth ground of appeal ought to be upheld. F – The fifth ground of appeal: jurisdiction 1. The main arguments of the parties 278. By its fifth ground of appeal, Intel, supported by ACT, claims that the General Court erred in law in holding that the Commission had jurisdiction to apply Article 102 TFEU to Intel’s 2006 and 2007 agreements with Lenovo (respectively ‘the 2006 agreement’ and ‘the 2007 agreement’ or jointly ‘the Lenovo agreements’). On the one hand, the 2006 agreement encouraged, by way of the grant of a financial incentive, Lenovo to postpone (and finally cancel) the launch of two AMD-based products on the worldwide market. (165) On the other hand, the 2007 agreement related to the rebates that Intel was to offer if Lenovo decided to source exclusively from Intel CPUs for its notebook. (166) The appellant argues that the naked restrictions and rebates, as regards Lenovo, were neither implemented in the EEA, nor had they any foreseeable, immediate or substantial effect in that area. 279. The Commission contends that the fifth ground is unfounded: the General Court did not err in holding that the Commission had the power to apply Article 102 TFEU with regard to the Lenovo agreements. The Commission argues that, under public international law, jurisdiction can be based on several factors, provided that a sufficient link exists between the behaviour complained of and the applicable rules of the territory concerned. In that regard, the implementation criterion and the ‘qualified’ effects criterion are only two possible ways of establishing such a link. In applying those criteria — the Commission contends — the judgment under appeal discloses no error in law. 2. Analysis 280. The present ground is by no means of lesser importance than those examined so far. It provides the Court with the welcome opportunity of clarifying the line of case-law devolving from ICI, and subsequently developed in Wood Pulp, (167) concerning the territorial application of EU competition law. It will enable the Court to fine-tune that line of case-law and adjust it to present-day conditions, characterised by global economies, integrated marketplaces and elaborate patterns of trade. 281. Here it is important to bear in mind the broader ramifications that the Court’s ruling is likely to have. Indeed, an overly generous interpretation of the rules on territorial jurisdiction is not uncontroversial from the viewpoint of public international law, with which EU law is to be interpreted in conformity. (168) It is therefore worth framing this ground of appeal in a broader context. 282. Generally speaking, jurisdiction takes (at least) three different forms: prescriptive jurisdiction, jurisdiction to enforce, and adjudicative (or ‘curial’) jurisdiction. Intel calls into question the Commission’s jurisdiction to apply EU competition law to unilateral conduct stemming from agreements arguably producing their effects outside the European Union. Therefore the present proceedings do not concern physical enforcement outside EU territory, an issue that raises a wide array of difficulties from the perspective of public international law. 283. I would also remark that public international law allows States to exercise jurisdiction extraterritorially in certain instances. However, although admittedly not binding per se, (169) mutual regard to the spheres of jurisdiction both of the European Union and of concerned third States, (170) or comity, suggests that restraint is called for in asserting extraterritorial jurisdiction. Unsurprisingly, the European Union itself opposes the extraterritorial application of the laws of third States when it considers doing so to be unlawful. (171) 284. That having been said, a survey of the case-law of the Court reveals that the application of EU law presupposes an adequate link to the EU territory. (172) That way, the basic principle of territoriality under public international law is observed. Still, it is not unusual for a State or an international organisation also to take into account, in the exercise of its sovereignty, circumstances that occur or have occurred outside its territorial jurisdiction. (173) 285. It follows from the existing case-law of the Court that EU competition law operates with a requirement that there be an adequate link to the EU territory, be it in the form of the presence of a subsidiary, or the implementation of anticompetitive conduct within that territory. However, in earlier cases, that link was much more discernable than in the matter currently under consideration. 286. In the present case the General Court considered that two alternative criteria may be applied to assert jurisdiction: the criterion of implementation and that of ‘qualified’ effects of the practices within the EEA. (174) In its view, the application of those criteria led to the same conclusion: the Commission had jurisdiction over the Lenovo agreements. (175) 287. In the following, I shall first explain my position on the issue of jurisdiction with regard to the public enforcement of EU competition rules. (176) I shall then illustrate why I consider this ground of appeal to be well founded. (a) General remarks: implementation and/or effects? 288. The first point I would make is a simple and self-evident one. To determine whether the Commission can apply EU competition rules to specific conduct, the starting point must be the wording of Articles 101 and 102 TFEU. Far from affording the Commission carte blanche to apply EU competition law to behaviour wherever it occurs and no matter whether it has any clear link to the EU territory, those provisions are concerned with collective or unilateral anticompetitive conduct within the internal market: Article 101 TFEU prohibits agreements or practices ‘which have as their object or effect the prevention, restriction or distortion of competition within the internal market’; and Article 102 TFEU, for its part, prohibits ‘any abuse … within the internal market’. 289. The jurisdictional rule for the application of EU competition rules is thus clearly embedded in those provisions. Although Article 102 TFEU is somewhat less clear, Article 101 TFEU is very explicit in that it applies to any conduct that has anticompetitive effects on the internal market. 290. Moreover, like the Commission, I do not read the judgment of the Court in Woodpulp as implying that implementation is the only valid jurisdictional criterion. I am rather of the view that when anticompetitive conduct is implemented in the European Union, the applicability of Articles 101 and 102 TFEU is beyond doubt. In other words, it cannot be disputed that conduct implemented in the European Union may have effects within the internal market and, consequently, cannot escape review under EU competition rules. In that context, a point that should not be overlooked is that the criterion of implementation is firmly rooted in the principle of territoriality and, accordingly, if met, it is a decisive factor for establishing the Commission’s jurisdiction to apply those rules to a specific conduct. (177) 291. The fact that only part of the relevant conduct takes place in the European Union is, in that regard, immaterial. (178) In Woodpulp, the Court dealt with a series of practices to fix wood pulp prices — which the Commission had considered to be contrary to what is now Article 101 TFEU — that had been adopted outside (what is now) the European Union by foreign wood pulp producers. In that context, the Court explained why the implementation, rather than the conclusion or formation, of an agreement or related practice was relevant to establish jurisdiction. If the prohibitions laid down in the Treaties were applied only where the agreement, decision or concerted practice was formed or adopted within the EU territory, that would provide undertakings with an easy way to fend off the application of EU competition rules. In that case, the criterion of implementation was met through the direct sale of the cartelised products: the undertakings concerned had sold wood pulp directly to purchasers in the European Union. (179) 292. Unlike Intel, however, I do not consider that only direct sales into the European Union by the undertaking in question can be regarded as meeting the implementation criterion for the purposes of the Woodpulp case-law. The ordinary meaning of ‘implementation’ is to carry out or to put into effect. Therefore, in order to meet that criterion, one of the essential constituent elements of the anticompetitive conduct must take place in the European Union. Whether that is so depends mainly on the nature, form and scope of the conduct in question. A case-by-case assessment of the unlawful conduct is required to verify whether that conduct is implemented within the European Union. For example, I am not convinced that indirect sales of the relevant product can never be regarded as implementation. (180) To my mind, that depends on the circumstances of each case. Among the elements which should be considered in that context is, for instance, whether one of the undertakings that cartelised a product and the undertaking which incorporates it into another product which is then sold in the Union form part of a single economic entity or, failing that, whether there are other corporate or structural links between the undertakings in question. 293. To conclude on this point, collective or unilateral conduct is implemented within the internal market — and thus unquestionably triggers the application of Articles 101 and 102 TFEU — when there is an element of intra-territorial conduct. (181) In other words, when part of the unlawful conduct is executed, applied or put into effect within the internal market because one of its essential constituent elements takes place there. 294. However, were implementation to be considered the only jurisdictional criterion triggering the application of EU competition rules, various types of conduct that may well have the object or effect of preventing, restricting or distorting competition within the internal market would fall beyond the reach of those rules. Here I have in mind conduct that is characterised by an unlawful omission, such as refusal to deal or boycotts. As mentioned in points 288 and 289 above, such an interpretation of Articles 101 and 102 TFEU would be contrary to the wording of those provisions. 295. In fact, several Advocates General have already advised the Court to adopt an effects-based approach to jurisdiction in the field of competition law. (182) The Court has not, to date, either endorsed or expressly rejected that approach. (183) 296. Against that background, I believe that the Court should explicitly address that issue here and, in line with what has been suggested by the Advocates General mentioned in the previous point, adopt an effects-based approach to the application of Articles 101 and 102 TFEU. 297. Whether such an approach is anchored in a (broad) concept of territoriality, or instead involves some extra territorial application of the EU rules is not determinative. (184) What is crucial is that, under certain conditions, effects is a jurisdictional criterion which, as concerns this kind of legislation, is generally acceptable under the rules of public international law (185) and has been embraced by many jurisdictions worldwide. (186) Indeed, many legal scholars take the view that any controversy regarding its acceptability is something that, by now, belongs to the past. (187) 298. In that context, it is worth noting that several other provisions of EU law regulate the foreign conduct of entities which are neither nationals of an EU Member State nor physically or legally present in the Union, because of the effect produced by that conduct in the internal market. That is the case, for example, of a number of provisions governing transactions in financial instruments or other types of economic conduct. (188) 299. That does not mean, however, that any effect, no matter how weak or indirect, could trigger the application of EU competition rules. In a globalised economy, conduct that takes place anywhere in the world, for example in China, will almost inevitably have some sort of effect in the European Union. Yet, the application of Articles 101 and 102 TFEU cannot be based on a link or effect that is too remote or purely hypothetical. 300. I consider it to be particularly important that jurisdiction is asserted with restraint in relation to behaviour that has not, strictly speaking, taken place within the territory of the European Union. Indeed, to comply with a certain form of comity and, by the same token, to ensure that undertakings can operate in a foreseeable legal environment, it is only with a great deal of caution that the effect of the conduct complained of can be used as the yardstick for asserting jurisdiction. That is all the more important today. There are over 100 national or supranational authorities worldwide that claim jurisdiction over anticompetitive practices. 301. As the General Court held in Gencor, the application of EU competition rules to some specific conduct could be justified only when that conduct has foreseeable, immediate and substantial effects in the internal market. (189) Here obvious parallels can be drawn to the competition rules applicable in the United States of America (‘the US’): Section 1 of the Sherman Act lays down a general prohibition on restraints of trade without any geographical limitations. That is why, in 1982, US Congress enacted the Foreign Trade Antitrust Improvement Act (‘FTAIA’), (190) to clarify (and possibly restrict) the extraterritorial application of the Sherman Act. Inter alia, the FTAIA states that, in essence, US antitrust rules do not apply to foreign conduct unless such conduct has a direct, substantial, and reasonably foreseeable effect in the US.In Empagran, the US Supreme Court — interpreting the Sherman Act and the FTAIA — found that it was unreasonable to apply US laws to foreign conduct where the resulting foreign injury complained of was independent of any domestic injury. (191) 302. Similar principles should guide this Court in interpreting and applying Articles 101 and 102 TFEU to undertakings’ collective or unilateral conduct that takes place entirely outside the Union’s borders. As I see it, such conduct is caught by those provisions only to the extent that a direct (or immediate), substantial and foreseeable anticompetitive effect within the internal market can be detected. That criterion of ‘qualified’ effects (meaning, as I understand it, that the effects are sufficiently significant to justify asserting jurisdiction), is not satisfied where, for example, the effect in the European Union is merely hypothetical or, in any event, of minor significance. It is also not satisfied where the distortion of competition within the internal market cannot be imputed to the undertaking in question, since those harmful effects were not foreseeable to it. 303. The wording of Articles 101 and 102 TFEU does not justify the application of EU rules by the Commission with respect to conduct that has no ‘qualified’ effect in the territory of the European Union. To hold the contrary would also be problematic under the rules of public international law. An over-reach of EU competition rules would risk encroaching upon the sovereign interests of other States and be legally and practically difficult to enforce. (192) It would also considerably increase the overlaps in the jurisdictions of different States or polities and thereby create great uncertainty for undertakings and increased risks of conflicting rules (or judgments) applying to the same conduct. Lastly, but no less importantly, it may raise questions under the principle of good administration: what would be the interest in enforcing EU rules with respect to conduct that has no significant effect in the European Union? Would that be a valid and effective use of the European Union’s limited resources? 304. In the light of the above, I take the view that the General Court cannot be criticised, as Intel argues, for having examined the Commission’s jurisdiction to apply Article 102 TFEU under both the implementation and the ‘qualified’ effects criteria. To be sure, it would have been more logical to first assess whether Intel’s conduct was implemented in the Union and, if not, only then whether that conduct was nonetheless producing ‘qualified’ effects in the internal market. 305. However, the fact that Intel did not question the Commission’s jurisdiction during the administrative procedure — which the General Court emphasises in paragraph 246 of the judgment under appeal — is irrelevant. As the Court has consistently stated, the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the appellants, and taking into account all the elements submitted by the latter, whether those elements pre-date or post-date the contested decision, whether they were submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the General Court, in so far as those elements are relevant to the review of the legality of the Commission decision. (193) 306. By way of conclusion, the legal framework applied by the General Court cannot be criticised. Nonetheless the application of those jurisdictional criteria to the alleged abuses originating from the Lenovo agreements in the judgment under appeal calls for the following critical remarks on my part. (b) Assessment of the application of the relevant jurisdictional criteria by the General Court 307. I will begin by examining the General Court’s findings as regards the implementation in the EEA of the naked restrictions and exclusivity rebates originating from the Lenovo agreements. i) Implementation 308. In the judgment under appeal, (194) the General Court found that the Lenovo agreements were intended to be implemented worldwide by Lenovo, including in the EEA. In the light of those agreements, Intel could not claim that it had no influence on the use made by Lenovo of the Intel CPUs. Intel was also aware that Lenovo was present in the internal market and sold notebooks in that market. 309. I consider this reasoning to be vitiated by an error in law. Had the Commission concluded that Intel together with Lenovo had infringed Article 101 TFEU, it would have been correct for the General Court to look at whether their agreements were intended to be implemented by either party in the EEA. However, the decision at issue deals with conduct which the Commission challenged under Article 102 TFEU: unilateral conduct on the part of Intel. It is consequently that unilateral conduct — the alleged abuse — that must be implemented in the EEA. 310. Yet, nowhere does the judgment under appeal refer to conduct initiated or carried out by Intel in the EEA territory to implement what had been agreed in the Lenovo agreements. That is not surprising. Those agreements, entered into by a US company and a Chinese company, concerned sales of CPUs manufactured and sold outside the Union, for incorporation into computers manufactured in China. They only limited the possibility for AMD, another US-based company, of selling CPUs on the Chinese market. 311. Instead of focusing on a possible implementation by Intel, the General Court concentrated on customer behaviour in a downstream market in order to establish a link to the EEA territory. The mere fact that Lenovo refrained, for a certain period of time, from selling a certain computer model on a worldwide level, possibly including the EEA, constituted for the General Court an instance of implementation of Intel’s abuses. 312. That reasoning fails to convince. By tying implementation to the behaviour of the customer of the undertaking accused of having breached Article 102 TFEU, almost any conduct — no matter how remotely related to the EU territory — could be construed as falling under the Commission’s jurisdiction on the basis of the criterion of implementation. The other elements taken into consideration by the General Court are equally unpersuasive. First, the mere fact that Intel had influence on the use made by Lenovo of Intel CPUs does not seem to me to have any bearing in that regard. Had Lenovo had some corporate or structural links to Intel, the conclusion could have been different. Second, the fact that Intel was aware that Lenovo was present in the internal market and sold notebooks in that market is, to my mind, also of little relevance. I must emphasise once more that the unlawful conduct does not relate to the sale of notebooks: it relates to the exclusion of AMD from the CPU market. Simple awareness of a customer’s presence in the EEA cannot be regarded as an instance of implementation of the abuses in an upstream market. 313. In the light of the elements set out in the judgment under appeal, I am therefore not convinced that Intel’s alleged abuse can be considered to have been implemented in the EEA within the meaning of Woodpulp. Nothing in the conduct in question, as far as I see, could be characterised as having been implemented, executed or put into effect in the internal market. 314. That does not exclude, however, that Intel’s conduct may have had anticompetitive effects in the internal market that are caught by Article 102 TFEU. Therefore, I shall now turn to the General Court’s findings with respect to the effects of Intel’s abuse in the EEA. ii) ‘Qualified’ effects 315. In the judgment under appeal, (195) the General Court first explained that the test to be applied was whether Intel’s conduct could have immediate, substantial and foreseeable effects in the internal market. In its view, that does not mean that the effect on the market must be actual, but only that it must be sufficiently probable that the conduct at issue is capable of having an appreciable and not negligible influence there. It then examined the effects of the two types of conduct separately. 316. As regards the naked restrictions, the General Court noted that, in respect of the fourth quarter of 2006, the two notebooks concerned by the postponement of the launch had projected sales figures of 5 400 and 4 250 units in the whole EMEA region (Europe, the Middle East and Africa). The General Court added that the EEA is an important part of that region. Since Intel did not provide any evidence in support of its assertion that it was possible that all those computers were intended for areas outside the EEA, the General Court took the view that the effects in the EEA were at least potential. It went on to acknowledge that the numbers concerned in the EMEA region were modest but it added that Intel’s conduct was part of a single and continuous infringement. (196) It also took the view that Intel’s conduct was intended to produce immediate effects in the EEA (where, during a certain time, an AMD-based computer was not available) and direct (Intel’s conduct directly concerned the sales of computers by Lenovo). (197) 317. As concerns the exclusivity rebates, the General Court found the effects to be immediate because no Lenovo notebook incorporating an x86 CPU produced by an Intel competitor was available anywhere in the world, including in the EEA. It then added that the anticompetitive effect was foreseeable and even intended by Intel. With regard to the substantial nature of the effect, the General Court stated that the exclusivity rebates formed part of a single and continuous infringement. (198) 318. The General Court’s reasoning is not just succinct. More importantly, it is vitiated by an error in law. 319. For both types of conduct, the General Court’s only argument regarding the substantial nature of the effect in the internal market is that they formed part of a single and continuous infringement. However, as explained in point 179 et seq. above, the concept of single and continuous infringement is merely a procedural rule aimed at alleviating the evidentiary burden of competition authorities. That concept does not — and cannot — extend the ambit of the prohibitions under the Treaties. 320. Yet, that is precisely what the General Court did in the judgment under appeal. Instead of looking at whether the exclusivity rebates and the naked restrictions were each capable of producing an appreciable anticompetitive effect in the internal market, which would have triggered the application of Article 102 TFEU, it merely bundled them together with conduct which took place in the European Union into a single and continuous infringement the effect of which was, in its view, significant. Therefore, two distinct types of foreign conduct that, in principle, may have both fallen outside the scope of Article 102 TFEU were suddenly caught by that provision because they were examined together with other conduct as parts of an overall plan to restrict competition. 321. Had the General Court properly applied the test of ‘qualified’ effects (in assessing whether each type of conduct fell within the jurisdiction of the Commission), the outcome of its analysis may well have been different. For example, the General Court itself stated that the number of computers affected by the naked restrictions was ‘modest’ and that it was unclear whether all or some of those were supposed to be sold in the EEA. As regards the latter element, I must also point to another error in law made by the General Court: it is clearly incumbent upon the Commission to prove that the effects of challenged conduct within the internal market may be appreciable. Indeed, according to settled case-law, it is for the Commission to prove that all the conditions required for the application of Articles 101 and 102 TFEU in a specific case are met. (199) Thus it was wrong to require Intel to disprove an assumption made by the Commission regarding the possible sale in the EEA of computers intended for a much wider region. 322. To be sure, the Lenovo agreements had an immediate and direct effect if those terms are intended to mean that those agreements influenced Lenovo’s conduct as regards the purchase of CPUs and the subsequent sale of notebooks with a x86 CPU requirement. However, the key question here is whether the anticompetitive effects stemming from those agreements were immediate and direct in the EEA. In other words, the General Court should have asked: could those agreements immediately or directly diminish Intel’s competitors’ ability to compete for x86 CPUs within the internal market? The General Court does not examine that aspect at all. It simply stated that those agreements had an impact on Lenovo’s business choices. That is something that any commercial agreement is arguably meant to have. 323. The same flawed reasoning was applied by the General Court in relation to the foreseeability of the effects produced by the Lenovo agreements. Yet again, the General Court focused on the effect those agreements had (or were intended to have) on Lenovo’s commercial choices. The judgment under appeal does not address the foreseeability of the anticompetitive effect those agreements (allegedly) produced in the internal market. 324. On the basis of the elements referred to in the judgment under appeal, far from being immediate, substantial and foreseeable, any anticompetitive effect resulting from the Lenovo agreements appears rather hypothetical, speculative and unsubstantiated. That does not mean, however, that the Lenovo agreements did not have, or could not have, any such ‘qualified’ effect in the internal market. 325. On the one hand, doubts may legitimately arise as to whether, for example, conduct which affected the sale in the EEA of a few thousand computers, representing an extremely limited percentage of the worldwide market for CPUs, over a particularly short time-frame, could be found to have any immediate, substantial and foreseeable effect in the EEA. On the other hand, it cannot be ruled out that the Lenovo agreements could have had a significant impact on AMD’s continuous capacity to develop, manufacture and market CPUs worldwide, including in the EEA. Seen from Intel’s perspective, the exclusion of the only viable competitor in the market for CPUs can be achieved regardless of whether it chooses to target customers that have operations in the EEA or elsewhere. The desired effect remains the same. 326. Regrettably, no such analysis was carried out by the General Court. The fundamental question of whether the Lenovo agreements had the capacity to produce any immediate, substantial and foreseeable anticompetitive effect in the EEA remains therefore unanswered. That is so despite its crucial importance to rule on the application of Article 102 TFEU to the alleged abuse originating from those agreements. 327. On the above basis I conclude that the General Court erred in law in applying both the implementation criterion and the ‘qualified’ effect criterion to dismiss Intel’s (and ACT’s) arguments regarding the Commission’s lack of jurisdiction to apply Article 102 TFEU with respect to the abuses originating from the Lenovo agreements. Therefore the fifth ground of appeal ought to be upheld. G – The sixth ground of appeal: the amount of the fine 1. The main arguments of the parties 328. The sixth ground of appeal deals with the amount of the fine imposed at first instance. It is divided in two parts. First, Intel claims that the fine is disproportionate, irrespective of any further reduction of the fine as a consequence of the errors in law committed by the General Court. Second, Intel claims that the General Court erred in applying the 2006 Guidelines to conduct that pre-dated them. The retroactive application of the 2006 guidelines to justify a fine more than 50 times larger than that specified under the law in force at the time most of the conduct occurred is, in the appellant’s submission, at variance with the fundamental principles of EU law. In particular, the appellant calls into question the conformity of that approach with Article 7 ECHR and Article 49 of the Charter. 329. The Commission takes the view that the present ground of appeal should be dismissed as partly inadmissible and partly ineffective or, alternatively, as unfounded. 2. Analysis 330. The appellant raises the present ground of appeal as a self-standing ground for annulling the judgment under appeal. It alleges a breach of the principle of proportionality and an erroneous (retroactive) application of the Commission’s fining guidelines by the General Court in determining the fine. 331. The first part of the sixth ground of appeal deals with the (dis)proportionality of the fine imposed on the appellant in the decision at issue, and subsequently confirmed by the General Court. In substance, it asks: what are the appropriate parameters for assessing the proportionality of a fine imposed by the Commission in the context of its investigations? 332. That is by no means an uninteresting question. As a matter of principle, it touches upon the very heart of the powers afforded to the Commission to investigate and sanction infringements of EU competition rules. Additionally, it has implications for the way the EU Courts exercise their unlimited jurisdiction in the context of fining. 333. A detailed answer to that question would require consideration of a wide array of sensitive issues. I have in mind, in particular, the interrelationship between deterrence and the level of fines, the relevant point of reference for measuring proportionality (that is: proportionality in relation to what?) and the limits that Article 49(3) of the Charter may set on the level of fines imposed on undertakings having breached EU competition rules. 334. Regrettably, however, this appeal does not lend itself to such a discussion. Apart from isolated remarks concerning the disproportionate nature of the fine, in particular in comparison to fines imposed previously in rebate cases under Article 102 TFEU, the appellant does not explain in what way the assessment of the General Court breaches the principle of proportionality. (200) Intel simply asks the Court to determine itself what penalty, if any, is proportionate in the circumstances of the present case. 335. In that connection, as is well known, it is not for the Court to substitute, on grounds of fairness, its own assessment for that of the General Court in relation to the amount of the fine. Exceptionally, where the Court considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, the Court can find that the General Court has committed an error in law on account of the inappropriateness of the amount of a fine. (201) The fact that the fine imposed in the decision at issue (EUR 1.06 billion) was record-breaking at the time does not in itself make it inappropriate or indeed, disproportionate, as seems to be suggested by the appellant. 336. In fact, the arguments pertaining to proportionality call into question, in reality, certain findings of fact and, in particular, the assessment of evidence at first instance. (202) Unlike in the context of the other grounds of appeal put forward in the present case, the legal error allegedly committed by the General Court is not readily detectable from the pleadings of the appellant. As already pointed out, it is not for the Court to reassess, in the context of an appeal, the facts or evidence. No substantiated claim regarding a manifest error in the assessment of the facts has been put forward in the present case. Nor is a distortion of evidence of the kind alleged by Intel obvious from the documents in the case file. Indeed, to be reviewable on appeal by the Court, it must be possible to detect the alleged distortion without a fresh assessment of the facts. (203) 337. That is why I agree with the Commission that the arguments put forward by the appellant in relation to the proportionality of the fine must be declared inadmissible. 338. The second part of the sixth ground of appeal deals with the retroactive application of the Commission’s 2006 fining guidelines to conduct that partially predated them. It asks: to what extent is the Commission bound by its fining guidelines? 339. The case-law of the Court is clear on that issue and does not assist the appellant. 340. It is settled law that the Commission is not barred from adjusting the level of the fines (upwards), within the limits indicated in Regulation No 1/2003, should that be necessary to ensure the implementation of EU competition policy. This is because the proper application of the EU competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy. (204) In that context, the principle of non-retroactivity can only have an impact on the Commission’s discretion to set the fine if the change in question was not reasonably foreseeable at the time when the infringements concerned were committed. (205) 341. More fundamentally still, the Court has held that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation that a particular method of calculating the fines will be employed. Rather, the undertakings in question must consider the possibility that the Commission can raise, at any time, the level of the fines by reference to that applied in the past. That is true not only where the Commission raises the level of the amount of fines imposing fines in individual decisions but also if that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the 2006 Guidelines. (206) 342. Those statements suggest to me that as long as the fine imposed remains within the confines set in Article 23(2) of Regulation No 1/2003, the appellant cannot usefully rely on the principle of non-retroactivity to contest the fine imposed on the basis of the 2006 Guidelines. That is not least because those Guidelines were already in force before the impugned conduct had ended. Indeed, it is Regulation No 1/2003 that defines, as the applicable law, the limits of the Commission’s discretion in imposing a fine for the infringement of EU competition rules, not the fining Guidelines that set out in more detail how the Commission intends to use that discretion. 343. In light of the above, the second part of the sixth ground of appeal should be dismissed as unfounded. Accordingly, the sixth ground of appeal ought to be dismissed. VI – Consequences of the assessment 344. Under the first paragraph of Article 61 of the Statute of the Court of Justice, the Court is to set aside the judgment of the General Court if the appeal is well founded. Where the proceedings so permit, it may itself give final judgment in the matter. It may also refer the case back to the General Court. 345. I have concluded that the first, second, third, fourth and fifth grounds of appeal should be upheld. As a consequence, the judgment under appeal should be set aside. 346. In the light of the nature of the errors committed by the General Court with regard to the first, second, third and fifth grounds of appeal, the state of the present proceedings does not in my view permit final judgment to be given. That is because a decision on the merits (whether or not the rebates and payments offered by Intel constitute an abuse of dominance contrary to Article 102 TFEU, as well as whether the Lenovo agreements had any immediate, substantial and foreseeable anticompetitive effect within the EEA) hinges upon an examination of all the circumstances of the case and, as the case may be, of the actual or potential effect of Intel’s conduct on competition within the internal market. That, in turn, involves an assessment of the facts which the General Court is better placed to carry out. 347. On the other hand, as concerns the fourth ground of appeal regarding the infringement of the appellant’s rights of defence, the Court would seem, from the outset, sufficiently informed to rule upon the annulment of the decision at issue. Nonetheless, the facts available and the exchange of views before this Court lead me to propose a referral, also on this point, to the General Court. More specifically, the parties should be given adequate opportunity to express their views on the consequences to be drawn from the procedural irregularity in question and more particularly, on whether the decision at issue should be annulled in its entirety (as was the case in Solvay (207)) or only in so far as it concerns Intel’s conduct vis-à-vis Dell. 348. Consequently, I propose that the Court should refer the case back to the General Court for a fresh review. VII – Conclusion 349. In the light of the foregoing considerations, I propose that the Court should: (1) set aside the judgment of the General Court of the European Union of 12 June 2014 in Case T‑286/09 Intel v Commission; (2) refer the case back to the General Court; (3) order that the costs be reserved. 1 Original language: English. 2 EU:T:2014:547 (‘the judgment under appeal’). 3 For a summary of that decision, see OJ 2009 C 227, p. 13. 4 See judgment of 13 February 1979, Hoffmann-La Roche v Commission, 85/76, EU:C:1979:36 (‘Hoffmann-La Roche’). 5 Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1). 6 Commission Regulation of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18). 7 Council Regulation of 6 February 1962: First Regulation implementing Articles [101] and [102 TFEU] (OJ, English Special Edition 1959-1962 (I), p. 87). 8 Confidential information omitted. In the following, in order to ensure anonymity, the name of the person concerned will be replaced, as at first instance, by the first letter of the name of the undertaking for which that person works followed by a number. 9 The test establishes at what price a competitor as efficient as Intel would have had to offer CPUs in order to compensate an OEM for the loss of an Intel rebate. 10 OJ 2006 C 210, p. 2. 11 See judgment of 17 February 2011, TeliaSonera, C‑52/09, EU:C:2011:83 (‘TeliaSonera’), paragraph 22 and the case-law cited. As described by the Court, the function of EU competition rules is to prevent competition from being distorted to the detriment of the public interest, individual undertakings and consumers, thereby ensuring the well-being of the European Union. 12 As the Court has observed, Article 102 TFEU is not designed to ensure that competitors less efficient than the dominant undertaking should remain on the market. See, judgment of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172 (‘Post Danmark I’), paragraphs 21 and 22. 13 Post Danmark I, paragraphs 21 and 22. 14 See, for the benefits of employing that shortcut, my Opinion in CB v Commission, C‑67/13 P, EU:C:2014:1958, point 35. 15 Judgment under appeal, paragraphs 76 and 77. See also Hoffmann-La Roche, paragraph 89. 16 Judgment under appeal, paragraphs 75 and 78. 17 Judgment under appeal, paragraphs 78 and 82. 18 Judgment under appeal, paragraphs 76 and 77. 19 Judgment under appeal, paragraph 76. 20 Judgment under appeal, paragraph 99. 21 Judgment under appeal, paragraphs 172 to 197. 22 See, in more detail, point 110 et seq. below. 23 Judgment under appeal, paragraphs 74 to 78. 24 Judgment under appeal, paragraph 79. 25 Judgment under appeal, paragraph 171. 26 Hoffmann-La Roche, paragraphs 89 and 90. 27 Judgment under appeal, paragraph 81. 28 See judgment of 9 November 1983, Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, EU:C:1983:313, paragraph 57 (‘Michelin I’); see also judgments of 2 April 2009, France Télécom v Commission, C‑202/07 P, EU:C:2009:214, paragraph 105, and of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603 (‘Deutsche Telekom’), paragraph 176; and TeliaSonera, paragraph 24. 29 Michelin I, paragraphs 66 to 71 in relation to discounts based on sales targets. 30 See judgment of 15 March 2007, British Airways v Commission, C‑95/04 P, EU:C:2007:166 (‘British Airways’), paragraph 52, concerning bonuses granted on the basis of the sales as a whole. 31 See judgment of 19 April 2012, Tomra Systems and Others v Commission, C‑549/10 P, EU:C:2012:221 (‘Tomra’), paragraph 75, regarding the rebates relevant on appeal. 32 Hoffmann-La Roche, paragraphs 92 to 100. 33 See Hoffmann-La Roche, paragraph 90. See also judgment of 30 September 2003, Michelin v Commission, T‑203/01, EU:T:2003:250 (‘Michelin II’), paragraph 58. In the latter case, the General Court qualified the presumption of lawfulness by considering that not to be the case where quantity rebates have a loyalty-inducing effect. 34 According to one possible definition, loyalty rebates are conditional on a customer sourcing a large or increasing share of its purchases with the discounter. These discounts are applicable where a customer exceeds a specific target for sales in a defined period. The target can be related to purchase growth, or to buying only (or a certain percentage) from a supplier, or to buying over a given threshold set on the basis of the customer’s requirements. In other words, a loyalty rebate is a discount given by a supplier to a customer as a reward for remaining loyal to that supplier. See OECD Policy roundtables, Fidelity and Bundled Rebates and Discounts, DAF/COMP(2008)29, 2008, p. 97. Available at: https://www.oecd.org/competition/abuse/41772877.pdf 35 Judgment under appeal, paragraphs 80 and 81. 36 See, for example, paragraph 97 of Hoffmann-La Roche. 37 Hoffmann-La Roche, paragraph 90. 38 See Hoffmann-La Roche, paragraph 89. 39 See Hoffmann-La Roche, paragraph 89. 40 See Hoffmann-La Roche, paragraph 92 et seq. 41 Judgment under appeal, paragraphs 82 and 83 in particular. 42 See Michelin I, paragraph 73. 43 See, in particular, British Airways, paragraph 67, and Tomra, paragraph 71. 44 See, for the two other isolated instances, judgments of 3 July 1991, AKZO v Commission, C‑62/86, EU:C:1991:286, paragraph 149, and 27 April 1994 , Almelo, C‑393/92, EU:C:1994:171, paragraph 44. Importantly, however, the Court’s treatment of the exclusive supply obligation in AKZO v Commission should be put in its context of a multitude of abusive practices carried out by AKZO. Similarly, the Court’s categorical statement in The Municipality of Almelo and Others was a response to a preliminary reference with its obvious limitations as to the facts of the case. 45 See in more detail point 109 et seq. below on the level of likelihood required to conclude that a certain type of behaviour constitutes abuse. 46 Judgment under appeal, paragraph 81. 47 Hoffman-La Roche, paragraph 82. 48 Hoffman-La Roche, paragraph 90. 49 Judgment under appeal, paragraphs 82 to 84. 50 See judgments in Michelin I, paragraph 73; British Airways, paragraph 67; and Tomra, paragraph 71. See also judgment of 9 September 2010, Tomra Systems and Others v Commission, T‑155/06, EU:T:2010:370, paragraph 215. 51 Judgment of 6 October 2015, Post Danmark, C‑23/14, EU:C:2015:651 (‘Post Danmark II’), paragraph 68. 52 See point 168 et seq. below. 53 See, to that effect, Post Danmark I, paragraph 44. 54 See Hoffmann-La Roche, paragraph 90. See also Michelin II, paragraph 58. 55 Judgment under appeal, paragraphs 92 and 93. This sub-type of loyalty rebates has been described as ‘exclusivity options’ that operate through leveraging. Petit, N., ‘Intel, Leveraging Rebates and the Goals of Article 102 TFEU’, European Competition Journal, vol. 11, issue 1,2015, pp. 26 to 28. 56 See judgment under appeal, paragraph 94. 57 See judgment under appeal, paragraph 89. 58 See Hoffman-La Roche, paragraph 89. 59 See statement in paragraph 81 of the judgment under appeal. 60 Judgment under appeal, paragraph 89. 61 Judgment under appeal, paragraph 81. 62 See British Airways, paragraphs 85 and 86 and the case-law cited, and Post Danmark I, paragraphs 40 and 41 and the case-law cited. See also Hoffmann-La Roche, paragraph 90. There, the Court observed that an undertaking could also justify the use of rebates where, in exceptional circumstances, an agreement between undertakings falls under the exception provided for in Article 101(3) TFEU. 63 Judgment under appeal, paragraphs 89 to 94. 64 OECD Policy roundtables, Fidelity and Bundled Rebates and Discounts, op. cit., pp. 9 and 21. See also Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings (OJ 2009 C 45, p. 7), paragraph 37, as regards conditional rebates. The Commission observes that such rebates may be used to attract more demand, and as such they may stimulate demand and benefit consumers. See also Neven, D., ‘A structured assessment of rebates contingent on exclusivity’, Competition Law & Policy Debate, vol. 1, issue 1, 2015, p. 86. 65 OECD Policy roundtables, Fidelity and Bundled Rebates and Discounts, op. cit., p. 9. 66 Hoffmann-La Roche, paragraph 89. 67 Tomra, paragraph 70. 68 See Michelin I, paragraph 72. 69 See British Airways, paragraph 75. 70 See, for example, Neven, D., op. cit., p. 39. Foreclosure depends, inter alia, on non-contestable sales, the power of the incentives provided by the exclusivity requirement on the non-contestable sales, degree of competition among buyers, the significance of scale economies and the issue whether the rebates target buyers that compete against firms that buy from rivals. 71 Judgment under appeal, paragraph 97. 72 See Tomra, paragraphs 70 and 71, referring to Michelin I, paragraphs 71 and 73. 73 See Hoffman-La Roche,paragraph 97. 74 Post Danmark II, paragraph 68. 75 See Deutsche Telekom, paragraph 175; TeliaSonera, paragraph 76; and Post Danmark I, paragraph 26. 76 Judgment under appeal, paragraph 99. 77 Judgment under appeal, paragraph 93. 78 DG Competition discussion paper on the application of Article [102 TFEU] to exclusionary abuses, 2005, p. 23. Available at: http://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf See also OECD Policy roundtables, Fidelity and Bundled Rebates and Discounts, op. cit., p. 26. That document, too, identifies rebates as one form of pricing practice. 79 Post Danmark II, paragraph 55 on the AEC test and the case-law cited. 80 Post Danmark II, paragraphs 27 to 29. 81 See Post Danmark II, paragraphs 23 to 25. 82 Post Danmark I, paragraph 26. 83 Post Danmark II, paragraph 68. 84 Judgment under appeal, paragraph 177. Indeed, otherwise competition authorities could only intervene once the suspected abuse has resulted in anticompetitive foreclosure. 85 See, Post Danmark II, paragraphs 68 and 69 and the case-law cited. See, on the other hand, Tomra, paragraph 68. In that case, the Court observed that for proving an abuse of a dominant position, it is sufficient to show that the abusive conduct of the undertaking in a dominant position tends to restrict competition or that the conduct is capable of having that effect. 86 See, recently, Post Danmark II, paragraph 69, and Post Danmark I, paragraph 44. 87 See, however, the Opinion of Advocate General Kokott in Post Danmark, C‑23/14, EU:C:2015:343, point 82. 88 See Michelin I, paragraph 73. See also Post Danmark II, paragraph 29 and the case-law cited. 89 Judgment under appeal, paragraphs 178 to 184. 90 Judgment under appeal, paragraph 180. 91 Judgment under appeal, paragraph 181. 92 See judgment of 23 October 2003, Van den Bergh Foods v Commission, T‑65/98, EU:T:2003:281 (‘Van den Bergh Foods’). 93 Tomra, paragraph 34. 94 In addition, it notes, with regard to Dell’s market share, that the rebates offered to Dell had foreclosed between 14.58 and 16.34% of the market, which it considered equally significant: see judgment under appeal paragraphs 190 and 191. 95 Judgment under appeal, paragraph 194. 96 Judgment under appeal, paragraphs 121 and 122. 97 Van den Bergh Foods, paragraph 98. 98 Commission Discussion Paper on Article [102 TFEU], op. cit., pp. 18, 19 and 41. 99 Tomra, paragraph 46. 100 The General Court noted that the Commission was entitled to conclude that, due to the focus on undertakings which were strategically speaking particularly significant for market access, the rebates and payments targeted important OEMs and a major retailer. Judgment under appeal, paragraphs 182 and 183. See also paragraphs 1507 to 1511 in relation to MSH. 101 Judgment under appeal, paragraph 178. 102 Judgment under appeal, paragraphs 112, 113 and 195. 103 Judgment under appeal, paragraph 195. 104 Judgment under appeal, paragraph 186. 105 Judgment under appeal, paragraphs 93 and 150. 106 Judgment under appeal, paragraphs 143, 144 and 152. 107 See Post Danmark II, paragraphs 55 to 58. 108 See Post Danmark II, paragraph 57 and the case-law cited. 109 See Tomra, paragraphs 73 to 80. 110 Judgment under appeal, paragraphs 192 and 193. 111 Judgment under appeal, paragraphs 193, 1561 and 1562. 112 See, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited. 113 See judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 72 and the case-law cited. See also judgment of 7 January 2004 Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6 (‘Aalborg’), paragraph 260. 114 See, for instance, Aalborg, paragraph 260. 115 For the use of that concept in the context of jurisdiction, see point 319 et seq. below. 116 Judgment under appeal, paragraph 193. 117 Judgment under appeal, paragraphs 134 and 137. 118 See Hoffmann-La Roche, paragraph 89, and Tomra, paragraph 70. 119 See judgment under appeal, in particular, paragraphs 126 and 129 regarding HP and paragraph 137 regarding Lenovo. 120 Judgment under appeal, paragraphs 132 and 133 in particular. 121 See Tomra, paragraph 42. 122 Decision at issue, recital 831. See also judgment under appeal, paragraph 133. 123 Judgment under appeal, paragraph 133. 124 See, on that issue, judgment under appeal, paragraph 611. 125 Judgment under appeal, paragraph 612. 126 Judgment under appeal, paragraphs 614 and 615. 127 Judgment under appeal, paragraphs 601 and 606. 128 Judgment under appeal, paragraph 617. 129 Judgment under appeal, paragraph 621. See also paragraph 636 as to the topics addressed during the meeting. 130 See also judgment under appeal, paragraph 617. 131 Judgment under appeal, paragraph 621. 132 Judgment under appeal, paragraph 622. 133 Judgment under appeal, paragraphs 635 and 636. 134 Judgment under appeal, paragraph 664. 135 See, for example, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408 (‘Dansk Rørindustri’), paragraph 148 and the case-law cited. 136 See judgment of 25 October 2011, Solvay v Commission, C‑109/10 P, EU:C:2011:686 (‘Solvay’). 137 Solvay, paragraphs 57 to 62. 138 Judgment under appeal, paragraph 630. 139 See, in particular, Aalborg, paragraph 133. 140 Judgment under appeal, paragraph 629. 141 Judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P, and C‑254/99 P, EU:C:2002:582 (‘Limburgse Vinyl Maatschappij’), paragraph 318 and the case-law cited. See also Aalborg, paragraph 75. 142 See judgment of 2 October 2003, Thyssen Stahl v Commission, C‑194/99 P, EU:C:2003:527, paragraph 31 and the case-law cited. 143 See Aalborg, paragraph 133. See also judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389 (‘Knauf Gips’), paragraphs 23 and 24 and the case-law cited. 144 See Solvay, paragraphs 62 and 64. 145 See judgment under appeal, for example, paragraphs 631, 644, 658 and 660. 146 See judgment under appeal, in particular paragraphs 646 and 658. 147 Judgment under appeal, paragraphs 632 to 660. 148 See Solvay, paragraph 59. 149 Opinion of Advocate General Kokott in Solvay v Commission, C‑109/10 P, EU:C:2011:256, point 191. 150 Judgment under appeal, paragraph 632 et seq. 151 For a criticism, see my Opinion in SKW Stahl-Metallurgie and SKW Stahl-Metallurgie Holding v Commission, C‑154/14 P, EU:C:2015:543, points 76 and 77. 152 Limburgse Vinyl Maatschappij, paragraphs 318 and 324; Aalborg, paragraphs 74, 75 and 131; and Knauf Gips, paragraphs 23 and 24. 153 Opinion of Advocate General Kokott in Solvay v Commission, C‑109/10 P, EU:C:2011:256, point 193. 154 See, in that regard, judgment under appeal, paragraphs 572 to 575. 155 See, in particular, paragraphs 651 to 653 of the judgment under appeal. 156 For a discussion on direct documentary evidence in cartel cases, see Guerrin, M., and Kyriazis, G., ‘Cartels: Proof and Procedural Issues’, Fordham International Law Journal, Volume 16, Issue 2, 1992, pp. 266 to 341, at 299 to 301. 157 See, for example, judgments of 14 July 1972, Imperial Chemical Industries v Commission, 48/69, EU:C:1972:70, paragraphs 65 to 68 (‘ICI’)and 16 December 1975, Suiker Unie and Others v Commission, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraphs 164 and 165, regarding the use of correspondence between third parties as evidence. 158 See, for example, Aalborg, paragraph 158 referring to the judgment appealed in that case. See also judgment of 19 March 2003, CMA CGM and Others v Commission, T‑213/00, EU:T:2003:76, paragraph 136 et seq. 159 See Aalborg, paragraph 133, where that rule was clearly expressed by the Court. 160 To establish the conditionality of the rebates in question in the decision at issue, the Commission relied upon certain internal Intel documents, namely presentations and emails (decision at issue, recitals 238 to 242); Dell’s Article 18 response (decision at issue, recitals 233 and 234); and certain internal Dell documents, namely internal presentations and emails (decision at issue, in particular recitals 222 to 227, 229 and 231). See also judgment under appeal, paragraphs 444 to 515. 161 Regarding Dell, see judgment under appeal, paragraph 440. 162 Decision at issue, recital 950, and judgment under appeal, paragraphs 504 to 514. 163 Decision at issue, in particular recitals 221 and 323. 164 Judgment of 2 October 2003, Thyssen Stahl v Commission, C‑194/99 P, EU:C:2003:527, paragraph 31 and the case-law cited. 165 Decision at issue, recital 560. 166 Decision at issue, recital 561. 167 See judgment of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447 (‘Woodpulp’). 168 See, inter alia, judgment of 24 November 1992, Poulsen and Diva Navigation, C‑286/90, EU:C:1992:453 (‘Poulsen’), paragraph 9. 169 See, to that effect, judgment of 29 June 2006, SGL Carbon v Commission, C-308/04 P, EU:C:2006:433, paragraph 34. 170 See, to that effect, judgment of 14 July 1972, Geigy v Commission, 52/69, EU:C:1972:73, paragraph 11. 171 I refer, for instance, to Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom (OJ 1996 L 309, p. 1, in particular the third and fourth recitals). 172 See, inter alia, judgments in Poulsen, paragraph 28; of 29 June 1994, Aldewereld, C-60/93, EU:C:1994:271, paragraph 14; of 9 November 2000, Ingmar, C‑381/98, EU:C:2000:605, paragraph 25; of 24 June 2008, Commune de Mesquer, C‑188/07, EU:C:2008:359, paragraphs 60 to 63; of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864 (‘ATAA’), paragraph 125; and of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraphs 54 and 55. See also judgment of 23 April 2015, Zuchtvieh-Export, C‑424/13, EU:C:2015:259, paragraph 56. 173 See the Opinion of Advocate General Kokott in Air Transport Association of America and Others, C‑366/10, EU:C:2011:637, points 148 and 149. 174 Judgment under appeal, paragraphs 231 to 236 and 244. 175 Judgment under appeal, paragraphs 296 and 310. 176 In this Opinion, I shall not consider the jurisdiction of Courts of the European Union to hear cases of private enforcement of EU competition rules, or the power of the EU legislature to legislate on competition matters. 177 See Woodpulp, paragraphs 16 and 18. 178 I observe that such an approach has been endorsed by the Court in a number of cases in which the applicability of the relevant EU rules was contested, on grounds of an alleged extra territorial effect, by some private parties: see Poulsen,ATAA and Google Spain and Google, C‑131/12, EU:C:2014:317. 179 Woodpulp, paragraphs 12 to 18. 180 On this issue, I thus take a different view from that taken by Advocate General Wathelet. See point 46 of the Opinion of Advocate General Wathelet in InnoLux v Commission, C‑231/14 P, EU:C:2015:292. 181 Cf. Lowe, V., and Staker, C., ‘Jurisdiction’, in Evans, M.D., (ed.), International Law, 3rd ed., Oxford University Press, 2010, pp. 322 and 323. 182 For endorsements of an effects based approach to jurisdiction, see in particular Opinion of Advocate General Mayras in Imperial Chemical Industries v Commission, 48/69, EU:C:1972:32, point 693 et seq., and Opinion of Advocate General Darmon in Joined Cases Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:258 (‘Opinion in Woodpulp’), point 19 etseq. In a similar vein, Opinion of Advocate General Wathelet in InnoLux v Commission, C‑231/14 P, EU:C:2015:292, point 49 et seq. 183 The parties have discussed at length whether the recent judgment of 9 July 2015, InnoLux v Commission, C‑231/14 P, EU:C:2015:451, supported, even if only implicitly, that approach. However, my understanding is that the Court decided not to address the jurisdictional issue, considering it irrelevant for the resolution of the case. See paragraphs 71 to 73 of the judgment. 184 That issue is, indeed, debated in legal scholarship: see, among others, International Bar Association, Report of the Task Force on Extraterritorial Jurisdiction, 2009, pp. 12 and 13. 185 See OECD Revised recommendation of the Council Concerning Cooperation between Member countries on Anticompetitive Practices affecting International Trade, 1995, Available at: https://www.oecd.org/daf/competition/21570317.pdf. See also Opinion in Woodpulp, points 19 to 31; and judgment of 25 March 1999, Gencor v Commission, T‑102/96, EU:T:1999:65, paragraph 90. 186 See, for example, International Bar Association, Report of the Task Force on Extraterritorial Jurisdiction, 2009, pp. 39 to 77. 187 See, among others, Wagner-von Papp, F., ‘Competition Law, Extraterritoriality & Bilateral Agreements’, Research handbook on International Competition Law, Edward Elgar Publishing 2012, p. 41 and further references. 188 For an overview of those provisions and a critical assessment, see Scott, J., ‘The New EU “Extraterritoriality”’, Common Market Law Review, vol. 51, Wolters Kluwer Law and Business, 2014, pp. 1343 to 1380. 189 Judgment under appeal, paragraph 243. 190 15 U.S.Code, title 15, chapter 1, §6a. 191 Judgment of the US Supreme Court in Hoffman-La Roche Ltd. v. Empagran S.A., 124 S.Ct. 2359 (2004). 192 It is precisely for these reasons that the EU institutions have concluded agreements with the authorities of several countries outside the European Union to establish forms of cooperation in the field of competition law. For example, no less than two such agreements have been concluded with the Government of the US; interestingly, they both deal with the issue of jurisdiction. For the text of these agreements and further references: see http://ec.europa.eu/competition/international/bilateral 193 See judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 72. 194 Judgment under appeal, paragraphs 310 to 314. 195 Judgment under appeal, paragraphs 250 to 258, and 283 to 297. 196 Judgment under appeal, paragraph 290. 197 Judgment under appeal, paragraphs 277 and 278. 198 Judgment under appeal, paragraphs 293 to 295. 199 See Article 2 of Regulation No 1/2003. 200 In that regard, it must be borne in mind that the Commission’s practice in previous decisions may generally not serve as a legal framework for fines imposed in competition matters. This is because the Commission enjoys a wide discretion in the area of setting fines and is not bound, as a matter of principle, by assessments which it has made in the past. See, inter alia, judgment of 19 March 2009, Archer Daniels Midland v Commission, C‑510/06 P, EU:C:2009:166, paragraph 82 and the case-law cited. 201 See, amongst many, judgments of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 205 and the case-law cited, and of 4 September 2014, YKK and Others v Commission, C‑408/12 P, EU:C:2014:2153, paragraph 29 and the case-law cited. See also judgments of 29 April 2004, British Sugar v Commission, C‑359/01 P, EU:C:2004:255, paragraph 47 and the case-law cited, and of 19 December 2013, Koninklijke Wegenbouw Stevin v Commission, C‑586/12 P, not published, EU:C:2013:863, paragraph 33 and the case-law cited. 202 In that regard, the appellant refers to a list of factors that in its view were inaccurately assessed in the judgment under appeal. In addition, the appellant disagrees with the way the General Court dealt with evidence pertaining to concealment, a factor which was relied upon to increase the fine. 203 See, for example, judgments of 6 April 2006, General Motors v Commission, C‑551/03 P, EU:C:2006:229, paragraphs 51 to 53 and the case-law cited, and of 8 March 2016, Greece v Commission, C‑431/14 P, EU:C:2016:145, paragraphs 31 and 32 and the case-law cited. 204 See, recently, judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 75 and the case-law cited. 205 See Dansk Rørindustri, paragraph 224. 206 Dansk Rørindustri, paragraphs 228 to 231. 207 Solvay, paragraphs 71 and 72.