62022CJ0240_RES
Case C‑240/22 P
European Commission
v
Intel Corporation Inc.
Judgment of the Court (Fifth Chamber) of 24 October 2024
(Appeal – Competition – Abuse of dominant position – Microprocessors market – Decision finding an infringement of Article 102 TFEU and Article 54 of the EEA Agreement – Loyalty rebates – Characterisation as abuse – Strategy aiming to exclude competitors that are at least as efficient as the dominant undertaking from the market)
Appeal – Grounds – Breach of the prohibition on ruling ultra petita – Action for annulment of a Commission decision finding an infringement of the competition rules – None – Examination by the General Court of arguments allegedly not raised in the application initiating proceedings – Amplification of an existing, closely linked plea – Whether permissible
(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Arts 76 and 84(1))
(see paragraphs 96-106)
Competition – Administrative procedure – Commission decision finding an infringement – Judicial review – Review of legality – Scope – Substitution of grounds for the contested decision – Precluded
(Arts 102 and 263 TFEU)
(see paragraphs 138, 158, 163, 166, 293, 316, 317)
Dominant position – Abuse – Concept – Objective concept relating to conduct which is such as to influence the structure of a market and having the effect of hindering the maintenance or growth of competition – Obligations on the dominant undertaking – Competition on the basis of merit – Criteria for assessment
(Art. 102 TFEU; EEA Agreement, Art. 54)
(see paragraphs 175-180)
Dominant position – Abuse – Exclusivity or loyalty rebates – Capability to restrict competition and to have foreclosure effects – Analysis of an as-efficient competitor – Criteria for assessment
(Art. 102 TFEU; EEA Agreement, Art. 54)
(see paragraphs 181, 182, 201, 203)
Dominant position – Abuse – Exclusivity or loyalty rebates – Capability to restrict competition and to have foreclosure effects – Analysis of an as-efficient competitor – Evidential obligations of the undertaking in a dominant position disputing the accuracy of the calculations made in that analysis
(Art. 102 TFEU; EEA Agreement, Art. 54)
(see paragraphs 204-208)
Dominant position – Abuse – Exclusivity or loyalty rebates – Capability to restrict competition and to have foreclosure effects – Burden of proof borne by the Commission – Analysis of an as-efficient competitor – Judicial review – Scope – Complex economic assessment – Establishing whether the evidence is factually accurate, reliable and consistent – Establishing whether the relevant information is complete
(Art. 102 TFEU)
(see paragraphs 267-271)
Dominant position – Abuse – Exclusivity or loyalty rebates – Capability to restrict competition and to have foreclosure effects – Analysis of an as-efficient competitor – Judicial review – Taking into account matters of fact or of law that were not disputed during the administrative procedure – Whether permissible
(Art. 102 TFEU)
(see paragraphs 273-279)
Dominant position – Abuse – Exclusivity or loyalty rebates – Capability to restrict competition and to have foreclosure effects – Analysis of an as-efficient competitor – Rebate granted in the form of a non-cash advantage – Determination of the value of the rebate – Criteria
(Art. 102 TFEU; EEA Agreement, Art. 54)
(see paragraphs 309-315)
Dominant position – Abuse – Exclusivity or loyalty rebates – Capability to restrict competition and to have foreclosure effects – Analysis of an as-efficient competitor – Inadequacy of the evidence submitted in support of that analysis – Obligation on the General Court to examine other factors that may establish that foreclosure capability – None
(Arts 102 and 263 TFEU)
(see paragraphs 328-343)
Résumé
By its judgment, the Court of Justice dismisses the appeal brought by the European Commission against the judgment of the General Court of 26 January 2022 (
1
) by which the General Court annulled in part the Commission’s decision imposing a fine on Intel for having abused its dominant position on the worldwide market for microprocessors by implementing an overall strategy aiming to exclude its main competitor from the market. In so doing, the Court definitively resolves the dispute between Intel and the Commission in that regard that began in 2009, endorsing, in the present case, the analysis followed by the General Court in order to hold that the foreclosure capability of the contested exclusivity rebates had not been demonstrated sufficiently and, accordingly, to overturn the finding of an infringement in that regard. It takes the opportunity to clarify the scope of the review of legality incumbent on the General Court when it is called upon to rule on such an analysis of the potential anticompetitive effects of such practices, and on the implementation of the as efficient competitor test (‘the AEC test’).
By decision of 13 May 2009, (
2
) the European Commission imposed on the microprocessor manufacturer Intel a fine of EUR 1.06 billion for having abused its dominant position on the worldwide market for microprocessors (Central Processing Units) (
3
) with x86 architecture (
4
) (‘x86 CPUs’) between October 2002 and December 2007, by implementing a strategy aiming to exclude its main competitor from the market.
In its decision, the Commission imputed to Intel two types of abusive conduct vis-à-vis its trading partners, namely naked restrictions and conditional rebates. As regards conditional rebates more specifically, Intel was found to have granted to four strategic original equipment manufacturers (‘OEMs’) (Dell, Hewlett-Packard (HP), NEC and Lenovo), rebates which were conditional on those OEMs purchasing all or almost all of their x86 CPUs from Intel. Similarly, Intel was found to have awarded payments to a European retailer of microelectronic devices (MSH) which were conditional on MSH selling exclusively computers containing x86 CPUs made by Intel. Those rebates and payments (‘the contested rebates’) ensured the loyalty of the four OEMs and MSH and thereby significantly diminished the ability of Intel’s competitors to compete on the merits of their x86 CPUs.
By judgment of 12 June 2014, (
5
) the General Court dismissed in its entirety the action for annulment brought by Intel against the decision at issue. On the appeal brought by Intel, the Court of Justice set aside the initial judgment by judgment of 6 September 2017 (
6
) and referred the case back to the General Court. In the judgment on the appeal, the Court of Justice noted that the General Court, like the Commission, had relied on the premiss that the loyalty rebates granted by an undertaking in a dominant position were by their very nature capable of restricting competition, so that it was not necessary to analyse all the circumstances of the case or to carry out an AEC test. That being so, since the Commission had nevertheless carried out such a test and that test had played an important role in the assessment of whether those rebates were capable of foreclosing a competitor as efficient as Intel, the Court of Justice held that the General Court should have examined all of Intel’s arguments concerning the Commission’s implementation of that test, the Commission being required to analyse not only the extent of the undertaking’s dominant position on the relevant market, the share of the market covered by the contested rebates, the conditions and arrangements for granting those rebates, their duration and their amount, but also the possible existence of a strategy aiming to exclude competitors that are at least as efficient as that undertaking from the market.
In the judgment under appeal, the General Court endorsed the findings in the initial judgment concerning the naked restrictions and their unlawfulness under Article 102 TFEU and the assessments in that judgment concerning the characterisation of the contested rebates as ‘exclusivity rebates’.
However, it examined, in accordance with the points of law decided by the judgment on the appeal, Intel’s arguments concerning the Commission’s implementation of the AEC test. In so doing, the General Court identified errors in the Commission’s application of that test with regard to the four OEMs and MSH. It also identified errors in the Commission’s examination of the share of the market covered by the contested rebates and the duration of their application that justified the partial annulment of the decision at issue, in so far as it characterised the contested rebates as practices constituting an infringement of Article 102 TFEU, and the annulment of the fine imposed on Intel. (
7
)
The Commission brought an appeal against the General Court’s judgment. It alleged, first, errors in the General Court’s examination of the AEC test and, second, failure to have regard to the scope of the judicial review carried out by the General Court for the purpose of analysing whether the contested rebates were capable of restricting competition.
Findings of the Court
The Court first of all addresses the complaints made in the first two grounds of appeal relating, in essence, to the scope of the judicial review carried out by the General Court for the purpose of analysing the capability of the contested rebates to restrict competition. In that regard, it considers that the General Court cannot be criticised for having failed to examine whether material in the decision at issue that is different from that on which the Commission relied in order to find an infringement of Article 102 TFEU made it possible to demonstrate the capability of the contested rebates to have an anticompetitive foreclosure effect, since it is not for the General Court to substitute its own reasoning for that of the author of the act the legality of which it is reviewing. Furthermore, as regards the evidence and documents in the file that the General Court may take into account in its assessments, the Court recalls that the General Court cannot rely on evidence that was not provided to the Commission during the administrative procedure or on evidence that is not apparent from the decision at issue. In the present case, examining the contested grounds of the judgment under appeal does not reveal any infringement of the principles thus recalled.
The assessment of the AEC test carried out by the Commission
The Court then analyses in turn the Commission’s complaints concerning the General Court’s examination of the application of the AEC test with regard to certain OEMs.
With regard to Dell, the Court examines more specifically whether the General Court made an error, as the Commission claimed, in its analysis of the evidence that was capable of calling into question the result of the AEC test obtained by the Commission.
In the present case, the Commission used the AEC test to assess the capability of the contested rebates to foreclose a competitor as efficient as Intel, albeit not dominant. In that regard, the Court observes that the AEC test carried out was intended to establish at what price a competitor as efficient as Intel and facing the same costs as Intel would have had to offer its x86 CPUs in order to compensate the strategic OEMs and MSH for the loss of the contested rebates, in order to determine whether, in such a situation, that competitor could still cover its costs.
That test is therefore based on a comparison between the contestable share (
8
) and the required share (
9
) for each OEM and for MSH. In that context, the Court notes that the Commission relied on assumptions that required a set of several figures to be taken into account.
Clarifying the standard of proof required for the undertaking in a dominant position to be able to call into question the result adopted by the Commission, the Court emphasises that that undertaking cannot merely call into question the accuracy of one of the calculations made in the AEC test, but must establish a deficiency or error that is capable of altering the result of the test, changing it from negative to positive, in such a way as to give rise to reasonable doubt as to the validity of the result adopted.
In the present case, the Court notes that the General Court considered, in its unappealable assessment of the evidence provided by Intel, that all the relevant data to be taken into consideration in assessing Dell’s contestable share indicated that that contestable share could in all likelihood be greater than the rate of 7.1% applied by the Commission, which chose to rely on only part of the data, so that the result of the AEC test could have been altered, changing from negative to positive, if all those data had been taken into account. That contestable share was, moreover, conceivable for the Commission itself, which nevertheless chose to rely solely on certain data.
Accordingly, the General Court could validly find that the Commission had not demonstrated to the requisite legal standard that the assessment of Dell’s contestable share is well founded.
After also rejecting the complaints alleging errors of law and infringement of the Commission’s rights of defence in the examination of the AEC test with regard to HP, the Court examined the complaints relating to the examination of the AEC test with regard to Lenovo concerning, more specifically, the assessment of the amount of the rebates granted to Lenovo.
In the present case, part of the rebates granted by Intel to Lenovo took the form of two non-cash advantages, namely the extension of Intel’s standard one-year warranty and the offer of improved use of an Intel supply hub in China.
As the General Court stated, the extent and nature of the contested rebates granted are factors taken into account when calculating the required share to determine the result of the AEC test. Consequently, where those rebates are granted in non-cash form, even in part, they must be assessed.
In that regard, the Court states that the compensation offered by a competitor as efficient as Intel does not necessarily have to take the form of a cash advantage equal to the value of the non-cash advantage for the customer concerned, but may consist in an equivalent non-cash advantage. It is also irrelevant, from the subjective point of view of the customer, that the value of the advantage differs from the cost that the competitor as efficient as Intel had to incur in order to grant it to that customer.
Consequently, it is necessary, in accordance with the principles of the AEC test, to assess a rebate granted in the form of a non-cash advantage by taking into account a hypothetical competitor with a cost structure similar to that of Intel. The Court adds that an adjustment of that cost may, however, be necessary to take account of the fact that the costs of the as-efficient competitor may be affected because it satisfies only the contestable share of the customers, which is smaller than Intel’s non-contestable share.
It follows that the Commission, which did not conduct its reasoning on the basis of a hypothetical competitor being capable of selling x86 CPUs to Lenovo while also offering non-cash advantages to Lenovo on the same terms as Intel, proceeded on the basis of an assumption that was contrary to the foundation of the AEC test set out in the decision at issue. The General Court therefore did not substitute its assessment for that of the Commission when it highlighted, in the judgment under appeal, an internal inconsistency in the AEC test.
The consequences to be drawn from the errors found in the AEC test
Last, the Court analyses the Commission’s complaints concerning the General Court’s incorrect assessment of the consequences to be drawn from the errors found in the AEC test.
In that context, the Court clarifies the scope of the judicial review to be carried out by the General Court in its examination of the Commission’s analysis of the foreclosure capability of the contested rebates.
According to settled case-law, the constituent elements of an infringement must be apparent from the statement of reasons for the measure finding the infringement, since the Courts of the European Union cannot alter them by substituting, in the context of the review of legality referred to in Article 263 TFEU, their own reasoning for that of the author of the measure in question.
In the present case, the General Court found, without the specific aspects of its examination being challenged by the Commission in the appeal, that the Commission had erred in the AEC test, had not considered properly the criterion relating to the share of the market covered and had not analysed correctly the duration of the contested rebates.
In the light of those findings, it was not for the General Court to examine, by means of reasoning that did not contain the errors found by it in the judgment under appeal, whether the contested rebates were capable of foreclosing a competitor as efficient as Intel by relying, for the purposes of that examination, on factors different from those on which the Commission had relied in order to establish that capability.
In particular, the sole reference, in the decision at issue, notwithstanding the conclusions to be drawn from the AEC test, to the period during which Intel implemented the contested rebates and to the timing of those rebates was not sufficient, in itself, to justify definitive conclusions as to the foreclosure effects thereby produced. The General Court also did not have to take into account the actual ability of Intel’s main competitor to remain on the market because its products are high-performance, innovative and attractive, since that analysis is independent of the AEC test.
(
1
)	Judgment of 26 January 2022, Intel Corporation v Commission (T‑286/09 RENV, EU:T:2022:19; ‘the judgment under appeal’).
(
2
)	Commission Decision C(2009) 3726 final of 13 May 2009 relating to a proceeding under Article [102 TFEU] and Article 54 of the EEA Agreement (Case COMP/C‑3/37.990 – Intel) (‘the decision at issue’).
(
3
)	The CPU is a key component of any computer, both in terms of overall performance and cost of the system.
(
4
)	CPUs used in computers can be subdivided into two categories, namely x86 CPUs and CPUs based on another architecture. The x86 architecture is a standard designed by Intel that can run both the Windows and Linux operating systems.
(
5
)	Judgment of 12 June 2014, Intel v Commission (T‑286/09, EU:T:2014:547; ‘the initial judgment’).
(
6
)	Judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632; ‘the judgment on the appeal’).
(
7
)	Taking the view that it was unable to identify the amount of the fine relating solely to the naked restrictions, the General Court annulled in its entirety the article of the decision at issue imposing on Intel a fine of EUR 1.06 billion in respect of the infringement found.
(
8
)	That term refers, in the present case, to the share of demand which Intel’s customers were willing and able to switch to another supplier, which is necessarily limited given, in particular, the nature of the product and Intel’s brand image and profile.
(
9
)	That term refers, in the present case, to the proportion of the customer’s requirements that a competitor as efficient as Intel must obtain in order for it to be able to enter the market without incurring losses.