JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)

26 January 2022 ( *1 )

(Competition – Abuse of dominant position – Microprocessors market – Decision finding an infringement of Article 102 TFEU and of Article 54 of the EEA Agreement – Loyalty rebates – ‘Naked’ restrictions – Characterisation as abuse – As-efficient-competitor analysis – Overall strategy – Single and continuous infringement)

In Case T‑286/09 RENV,

Intel Corporation, Inc., established in Wilmington, Delaware (United States), represented by A. Parr, Solicitor, D. Beard QC and J. Williams, Barrister,

applicant,

supported by

Association for Competitive Technology, Inc., established in Washington, DC (United States), represented by J.-F. Bellis and K. Van Hove, lawyers,

intervener,

v

European Commission, represented by T. Christoforou, V. Di Bucci, N. Khan and M. Kellerbauer, acting as Agents,

defendant,

supported by

Union fédérale des consommateurs – Que choisir (UFC – Que choisir), established in Paris (France), represented by E. Nasry, lawyer,

intervener,

APPLICATION under Article 263 TFEU seeking, primarily, the annulment of 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) or, in the alternative, annulment or reduction of the fine imposed on the applicant,

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed of H. Kanninen, President, J. Schwarcz (Rapporteur), C. Iliopoulos, I. Reine and B. Berke, Judges,

Registrar: E. Artemiou, Administrator,

having regard to the written part of the procedure and further to the hearing on 10 to 12 March 2020,

gives the following

Judgment

Background to the dispute

1 Intel Corporation, Inc., (‘the applicant’ or ‘Intel’) is a company established under United States law which designs, develops, manufactures and markets central processing units (‘CPUs’), chipsets and other semiconductor components, as well as platform solutions for data processing and communications devices.

2 At the end of 2008, Intel employed around 94100 people worldwide. In 2007, Intel had net revenues of 38334 million United States dollars (USD) and a net income of USD 6976 million. In 2008, Intel had net revenues of USD 37586 million and a net income of USD 5292 million.

Administrative procedure

3 On 18 October 2000, Advanced Micro Devices, Inc. (‘AMD’) filed a formal complaint with the Commission of the European Communities under Article 3 of Council Regulation (EEC) No 17 of 6 February 1962, First Regulation implementing Articles [101] and [102 TFEU] (OJ, English Special Edition, 1959-1962 (I), p. 87), which it further supplemented by putting forward new facts and allegations, in the context of a supplementary complaint of 26 November 2003.

4 In May 2004, the Commission launched a series of investigations relating to elements in AMD’s supplementary complaint. Within the framework of that investigation, in July 2005, the Commission, assisted by several national competition authorities, carried out on-the-spot inspections pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 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) at four Intel locations in Germany, Spain, Italy and the United Kingdom, as well as at the locations of several Intel customers in Germany, Spain, France, Italy and the United Kingdom.

5 On 17 July 2006, AMD filed a complaint with the Bundeskartellamt (Federal Cartel Office, Germany), in which it claimed that Intel had engaged in, inter alia, exclusionary marketing arrangements with Media-Saturn-Holding GmbH (‘MSH’), a European retailer of microelectronic devices and the largest desktop computer distributor in Europe. The Federal Cartel Office exchanged information with the Commission on that subject, pursuant to Article 12 of Regulation No 1/2003.

6 On 23 August 2006, the Commission held a meeting with D1 [confidential], ( 1 ) a customer of Intel. The Commission did not place the indicative list of topics for that meeting in the case file and did not take minutes of it. A member of the team responsible for the file at the Commission drafted a note concerning that meeting, which was described as internal by the Commission. On 19 December 2008, the Commission provided the applicant with a non-confidential version of that note.

7 On 26 July 2007, the Commission notified to the applicant a statement of objections (‘the Statement of Objections of 2007’) concerning its conduct vis-à-vis five major original equipment manufacturers (‘OEMs’), namely Dell, Hewlett-Packard Company (HP), Acer Inc., NEC Corp. and International Business Machines Corp. (IBM). Intel replied to that statement of objections on 7 January 2008 and an oral hearing was held on 11 and 12 March 2008. Intel was granted access to the file on three occasions, namely on 31 July 2007, 23 July and 19 December 2008.

8 The Commission undertook several investigative measures relating to AMD’s allegations, including on-the-spot inspections at the sites of several computer retailers and Intel locations in February 2008. In addition, it addressed several written requests for information, pursuant to Article 18 of Regulation No 1/2003, to a number of major OEMs.

9 On 17 July 2008, the Commission issued to the applicant a supplementary statement of objections concerning its conduct vis-à-vis MSH. That statement of objections (‘the Supplementary Statement of Objections of 2008’) also covered Intel’s conduct vis-à-vis Lenovo Group Ltd (‘Lenovo’) and included new evidence relating to Intel’s conduct vis-à-vis some of the OEMs covered by the Statement of Objections of 2007, which had been obtained by the Commission following the publication of the latter.

10 The Commission originally set Intel a deadline of eight weeks to submit its reply to the Supplementary Statement of Objections of 2008. On 15 September 2008, that deadline was extended to 17 October 2008 by the Hearing Officer.

11 Intel did not reply to the Supplementary Statement of Objections of 2008 within the prescribed period. By contrast, on 10 October 2008, Intel lodged an application with the General Court, registered under reference T‑457/08, requesting the Court, first, to annul two decisions of the Commission relating to the setting of the period for replying to the Supplementary Statement of Objections of 2008 and to the Commission’s refusal to obtain several categories of documents emanating from, inter alia, the file of the private litigation between Intel and AMD in the State of Delaware (United States) and, second, to extend the deadline for lodging its reply to the Supplementary Statement of Objections of 2008 in order to have a period of 30 days from the day on which it obtained access to the relevant documents.

12 Intel also lodged an application for interim measures, registered under reference T‑457/08 R, by which it sought to obtain the suspension of the Commission’s procedure pending the judgment on its substantive application, as well as the suspension of the period set for lodging its reply to the Supplementary Statement of Objections of 2008 and, in the alternative, that it be allowed a period of 30 days from the date of that judgment in order to reply to the Supplementary Statement of Objections of 2008.

13 On 19 December 2008, the Commission sent Intel a letter drawing its attention to a number of specific items of evidence which the Commission intended to use in a potential final decision (‘the Letter of Facts’). Intel did not reply to that letter by the deadline of 23 January 2009.

14 On 27 January 2009, the President of the General Court dismissed the application for interim measures by order of 27 January 2009, Intel v Commission (T‑457/08 R, not published, EU:T:2009:18). Following that order, on 29 January 2009, Intel proposed to file its reply to the Supplementary Statement of Objections of 2008 and to the Letter of Facts within 30 days of the order of the President of the Court.

15 On 2 February 2009, the Commission informed Intel by letter that its services had decided not to grant it an extension of the deadlines for a reply to the Supplementary Statement of Objections of 2008 or to the Letter of Facts. That letter also stated that the Commission services were nevertheless willing to consider the possible relevance of belated written submissions, provided that Intel served such submissions by 5 February 2009. Finally, the Commission expressed the view that it was not obliged to grant a request for a hearing lodged out of time, and that its services considered that the proper conduct of the administrative procedure did not make the preparation of an oral hearing necessary.

16 On 3 February 2009, Intel withdrew its action in the main proceedings in Case T‑457/08 and the case was removed from the Register by order of the President of the Fifth Chamber of the General Court of 24 March 2009.

17 On 5 February 2009, Intel served a written submission including observations relating to the Supplementary Statement of Objections of 2008 and the Letter of Facts, which it classed as a ‘reply to the Supplementary Statement of Objections [of 2008]’ and a ‘reply to the [Letter of Facts]’.

18 On 10 February 2009, Intel wrote to the Hearing Officer and asked to be granted an oral hearing in relation to the Supplementary Statement of Objections of 2008. The Hearing Officer rejected that request by letter of 17 February 2009.

19 On 13 May 2009, the Commission adopted Decision C(2009) 3726 final relating to a proceeding under Article [102 TFEU] and Article 54 of the EEA Agreement (Case COMP/C‑3/37.990 – Intel) (‘the contested decision’), a summary of which appears in the Official Journal of the European Union (OJ 2009 C 227, p. 13).

The contested decision

20 According to the contested decision, Intel committed a single and continuous infringement of Article 102 TFEU and of Article 54 of the Agreement on the European Economic Area (EEA), from October 2002 until December 2007, by implementing a strategy aimed at foreclosing a competitor, AMD, from the market for x86 CPU microprocessors (‘x86 CPUs’).

Relevant market

21 The goods at issue in the contested decision are CPUs, which are key components of any computer, both in terms of overall performance and cost of the system. CPUs are often referred to as a computer’s ‘brain’. The process for the manufacture of CPUs requires expensive high-tech facilities.

22 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 for its CPUs. It can run both the Windows and Linux operating systems. Windows is primarily linked to the instruction set corresponding to the x86 architecture. Prior to 2000, a number of manufacturers of x86 CPUs were present on the market. However, most of those manufacturers have since exited the market. The contested decision states that, since then, Intel and AMD have been essentially the only two companies still manufacturing x86 CPUs.

23 The Commission’s inquiry led to the conclusion that the relevant product market was not wider than the market of x86 CPUs. The contested decision leaves open the question of whether there is a single x86 CPU market for all computers or whether it is necessary to draw a distinction between three x86 CPU markets, namely the market for desktop computers, the market for notebook computers and the market for servers. According to the contested decision, given Intel’s market shares for each segment, there is no difference to the conclusion on dominance.

24 The geographical market was defined as worldwide.

Dominance

25 In the contested decision, the Commission finds that, in the 10-year period which was examined (1997 to 2007), Intel consistently held market shares in excess of or around 70%. Furthermore, according to the contested decision, there are significant barriers to entry and expansion in the x86 CPU market. Those barriers arise from sunk investments in research and development, intellectual property and the production facilities which are necessary to produce x86 CPUs. In consequence, all of Intel’s competitors, except AMD, have exited the market or are left with an insignificant share.

26 On the basis of Intel’s market shares and the barriers to entry and expansion in the relevant market, the contested decision concludes that, at least in the period covered by that decision, that is to say, from October 2002 to December 2007, Intel held a dominant position in that market.

Abuse and fine

27 The contested decision describes two types of Intel conduct vis-à-vis its trading partners, namely conditional rebates and naked restrictions.

28 First, according to the contested decision, Intel granted to four OEMs, namely Dell, Lenovo, HP and NEC, rebates which were conditional on those OEMs purchasing all or almost all of their x86 CPUs from Intel. Similarly, Intel awarded payments to MSH which were conditional on MSH selling exclusively computers containing Intel’s x86 CPUs.

29 The contested decision concludes that the conditional rebates granted by Intel constitute fidelity rebates. With regard to Intel’s conditional payments to MSH, the contested decision establishes that the economic mechanism of those payments is equivalent to that of the conditional rebates granted to the OEMs.

30 The contested decision also conducts an economic analysis of the capability of the rebates to foreclose a hypothetical competitor as efficient as Intel (as-efficient-competitor test; ‘the AEC test’), albeit not dominant. More precisely, the analysis 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. The same kind of analysis was conducted for the Intel payments to MSH.

31 The evidence gathered by the Commission led it to conclude that Intel’s conditional rebates and payments induced the loyalty of the key OEMs and of MSH. The effects of these practices were complementary, in that they significantly diminished competitors’ ability to compete on the merits of their x86 CPUs. Intel’s anticompetitive conduct thereby resulted in a reduction of consumer choice and in lower incentives to innovate.

32 Second, with regard to naked restrictions, the Commission states that Intel awarded three OEMs, namely HP, Acer and Lenovo, payments which were conditional on those OEMs postponing or cancelling the launch of products with AMD x86 CPUs or placing restrictions on the distribution of those products. The contested decision concludes that Intel’s conduct also directly harmed competition, and did not constitute normal competition on the merits.

33 The Commission concludes in the contested decision that, in each instance, Intel’s conduct vis-à-vis the OEMs mentioned above and MSH constitutes an abuse under Article 102 TFEU, but that each of those individual abuses is also part of a single strategy aimed at foreclosing AMD, Intel’s only significant competitor, from the market for x86 CPUs. Those individual abuses, it found, are therefore part of a single infringement of Article 102 TFEU.

34 By applying the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2), the Commission imposed on the applicant a fine of EUR 1.06 billion.

Operative Part

35 The operative part of the contested decision reads as follows: ‘Article 1 Intel … has committed a single and continuous infringement of Article [102 TFEU] and Article 54 of the EEA Agreement from October 2002 until December 2007 by implementing a strategy aimed at foreclosing competitors from the market of x86 CPUs which consisted of the following elements: (a) Granting rebates to Dell between December 2002 and December 2005 at a level that was conditional on Dell obtaining all of its x86 CPU supplies from Intel; (b) Granting rebates to HP between November 2002 and May 2005 at a level that was conditional on HP obtaining at least 95% of its corporate desktop x86 CPU supplies from Intel; (c) Granting rebates to NEC between October 2002 and November 2005 at a level that was conditional on NEC obtaining at least 80% of its client PC x86 CPU supplies from Intel; (d) Granting rebates to Lenovo between January 2007 and December 2007 at a level that was conditional on Lenovo obtaining all of its notebook x86 CPU supplies from Intel; (e) Granting payments to [MSH] between October 2002 and December 2007 at a level that was conditional on [MSH] selling only computers incorporating Intel x86 CPUs; (f) Granting payments to HP between November 2002 and May 2005 conditional on: (i) HP directing HP’s AMD-based x86 CPU business desktops to Small and Medium Business and Government, and Educational and Medical customers rather than to enterprise business customers; (ii) precluding HP’s channel partners from stocking HP’s AMD-based x86 CPU business desktops such that such desktops would only be available to customers by ordering them from HP (either directly or via HP channel partners acting as sales agent); and (iii) HP delaying the launch of its AMD-based x86 CPU business desktop in the [Europe, Middle East and Africa] region by six months; (g) Granting payments to Acer between September 2003 and January 2004 conditional on Acer delaying an AMD-based x86 CPU notebook; (h) Granting payments to Lenovo between June 2006 and December 2006 conditional on Lenovo delaying and finally cancelling its AMD-based x86 CPU notebooks. Article 2 For the infringement referred to in Article 1, a fine of EUR 1060000000 is imposed on Intel … Article 3 Intel … shall immediately bring to an end the infringement referred to in Article 1 in so far as it has not already done so. Intel … shall refrain from repeating any act or conduct described in Article 1, and from any act or conduct having the same or equivalent object or effect. …’

Procedure before the General Court and the Court of Justice

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

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

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

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

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

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

42 By decision of 18 January 2012, the Court referred the case to the Seventh Chamber sitting in extended composition, pursuant to Article 14(1) and Article 51(1) of the Rules of Procedure of the General Court.

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

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

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

46 The Court held, in essence, in paragraph 79 of the initial judgment, that the rebates granted to Dell, HP, NEC and Lenovo were exclusivity rebates, since they were conditional upon customers purchasing from Intel either all their x86 CPU requirements or most of their requirements. In addition, the Court stated, in paragraphs 80 to 89 of the initial judgment, that the question whether such a rebate can be characterised as abusive does not depend on an analysis of the circumstances of the case aimed at establishing the capacity of that rebate to restrict competition.

47 For the sake of completeness, the Court considered, in paragraphs 172 to 197 of the initial judgment, that the Commission had established, to the requisite legal standard and on the basis of an analysis of the circumstances of the case, that the exclusivity rebates and payments granted by Intel to Dell, HP, NEC, Lenovo and MSH were capable of restricting competition.

48 As regards the second plea in law, alleging that the Commission did not establish its territorial jurisdiction to apply Articles 101 and 102 TFEU to the practices implemented in relation to Acer and Lenovo, the Court first of all considered, in paragraph 244 of the initial judgment, that, in order to justify the Commission’s jurisdiction under public international law, it was sufficient to establish either the qualified effects of the practice in the European Union or that it was implemented in the European Union. It then held, in paragraph 296 of the initial judgment, that the substantial, immediate and foreseeable effect that Intel’s conduct was capable of having within the European Economic Area (EEA) justified the Commission’s jurisdiction. Lastly, for the sake of completeness, the Court held, in paragraph 314 of the initial judgment, that that jurisdiction was also justified on account of the implementation of the conduct in question in the territory of the European Union and the EEA.

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

50 First, the Court considered, in paragraph 618 of the initial judgment, that the meeting in question did not constitute formal questioning for the purposes of Article 19 of Regulation No 1/2003 and that the Commission was not required to carry out such questioning. It therefore concluded, in that paragraph, that Article 3 of Commission Regulation (EC) No 773/2004 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) was not applicable, with the result that the argument alleging infringement of the formal requirements laid down in that provision was ineffective.

51 Second, the Court held, in paragraphs 621 and 622 of the initial judgment, that, even though the Commission had infringed the principle of sound administration by failing to draw up a document containing a brief summary of the subjects addressed at that meeting and the names of the participants, it had nevertheless remedied that initial omission by making available to Intel the non-confidential version of an internal note relating to that meeting.

52 As regards the fourth plea in law, alleging errors of assessment concerning the practices relating to the various OEMs and MSH, the Court rejected all of the complaints raised by Intel in relation to Dell, HP, NEC, Lenovo, Acer and MSH in paragraphs 665, 894, 1032, 1221, 1371 and 1463 of the initial judgment.

53 As regards the fifth plea in law, by which Intel disputed the existence of an overall strategy aimed at foreclosing AMD’s access to the most important sales channels, the Court held, in paragraphs 1551 and 1552 of the initial judgment, that the Commission had, in essence, demonstrated to the requisite legal standard that Intel had attempted to conceal the anticompetitive nature of its practices and had implemented a long-term comprehensive strategy to foreclose AMD from those sales channels.

54 As regards the sixth plea in law, alleging that the Commission incorrectly applied the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, the Court considered, inter alia, in paragraph 1598 of the initial judgment, that neither the principle of legal certainty nor the principle that offences and punishments are to be strictly defined by law precluded the Commission from deciding to adopt and apply new guidelines on the method of setting fines, even after the infringement has been committed. In addition, the Court took the view, in that paragraph, that effective enforcement of the competition rules justifies an undertaking being required to take account of the possibility of a modification to the general competition policy of the Commission as regards fines with respect both to the method of calculation and to the level of fines.

55 As regards the seventh plea in law, alleging the absence of an intentional or negligent infringement of Article 102 TFEU, the Court held, in essence, in paragraphs 1602 and 1603 of the initial judgment, that Intel could not have been unaware of the anticompetitive nature of its conduct and that the evidence relied on in the contested decision demonstrated to the requisite legal standard that Intel had implemented a long-term comprehensive strategy to foreclose AMD from the strategically most important sales channels and that it had attempted to conceal the anticompetitive nature of its conduct.

56 As regards the eighth plea in law, concerning the allegedly disproportionate nature of the fine, the Court held, in paragraphs 1614 to 1616 of the initial judgment, that the Commission’s practice in previous decisions could not serve as a legal framework for the fines imposed in competition matters and that, in any event, the decisions relied on in that respect by Intel were not relevant as regards observance of the principle of equal treatment. Furthermore, contrary to Intel’s assertions, the Court pointed out, in paragraphs 1627 and 1628 of the initial judgment, that the Commission had not taken into consideration the actual impact of the infringement on the market in order to determine its gravity.

57 As regards, lastly, the ninth plea in law, which sought annulment or reduction of the fine imposed on the applicant in the exercise of the Court’s unlimited jurisdiction, the Court held, inter alia, in paragraph 1647 of the initial judgment, that there was nothing in the complaints, arguments or matters of law and of fact put forward by Intel from which it might be concluded that the fine which had been imposed on it was disproportionate. The Court considered, in that paragraph, that the fine was appropriate to the circumstances of the case and emphasised out that it was well below the 10% ceiling set in Article 23(2) of Regulation No 1/2003.

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

59 The applicant put forward six grounds in support of its appeal. By the first ground of appeal, it submitted that the General Court had erred in law by failing to examine the rebates at issue in the light of all the relevant circumstances. By the second ground of appeal, the applicant submitted that the General Court had erred in law in assessing the finding of an infringement in 2006 and 2007, inter alia as regards the assessment of the market coverage of the rebates at issue in those two years. By the third ground of appeal, the applicant argued that the General Court had erred in law as regards the legal characterisation of the exclusivity rebates which Intel concluded with HP and Lenovo. By the fourth ground of appeal, it submitted that the General Court had wrongly concluded that there was no material procedural irregularity affecting Intel’s rights of defence in the Commission’s treatment of the interview with D1. By the fifth ground of appeal, Intel argued that the General Court had misapplied the tests in relation to the Commission’s jurisdiction over the agreements concluded between Intel and Lenovo in 2006 and 2007. Lastly, by the sixth ground of appeal, the applicant asked the Court of Justice to annul or to reduce substantially the fine imposed on it, having regard to the principle of proportionality and the principle that the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 should not be applied retroactively.

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

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

Procedure and forms of order sought following the referral back

62 The case was allocated to the Fourth Chamber (Extended Composition) of the General Court.

63 On 14, 15 and 16 November 2017 respectively, ACT, the applicant and the Commission submitted their written observations on the referral back, pursuant to Article 217(1) of the Rules of Procedure (‘the main observations’).

64 The applicant and the Commission requested that certain confidential matters contained in their respective main observations not be communicated to the interveners. They produced a non-confidential version of those various pleadings. The communication of those pleadings was restricted to that non-confidential version. The interveners raised no objections in that regard.

65 On 20 February 2018, ACT and, on 5 March 2018, the applicant and the Commission, respectively, lodged supplementary written observations pursuant to Article 217(3) of the Rules of Procedure (‘the supplementary observations’).

66 The applicant and the Commission requested that certain confidential matters contained in their supplementary observations not be communicated to the interveners. They produced a joint non-confidential version of those various pleadings. The communication of those pleadings was restricted to that non-confidential version. The interveners raised no objections in that regard.

67 In its observations, the applicant, supported by ACT, claims that the Court should: – annul the contested decision in whole or in part; – in the alternative, annul or reduce substantially the amount of the fine imposed; – order the Commission to pay the applicant’s costs.

68 In its observations, the Commission contends, in essence, that the Court should dismiss the action.

69 By letters of 7, 15 and 28 October 2019, Intel and the Commission partially waived confidentiality for the purposes of the hearing and the decision closing the proceedings, provided that no confidential document was served on the interveners. They stated, in essence, that all of the data in the file could be discussed in open court, with two exceptions, namely that the Court refrain from disclosing details regarding server X [confidential] and that the names of the natural persons mentioned in the pleadings should not be made public.

70 By letter of 27 January 2020, ACT applied for leave to participate in the part of the hearing which was to be held in camera because of the confidentiality of the information to be discussed, in accordance with the General Court’s decision of 10 December 2019.

71 By letter of 6 March 2020, UFC informed the Court that it was waiving its right to participate in the hearing scheduled from 10 to 12 March 2020 (‘the 2020 hearing’).

72 At the 2020 hearing, the President of the Fourth Chamber (Extended Composition), referred to the letter of 27 January 2020 lodged by ACT, in which ACT requested to participate in the hearing, which was initially to be held in camera. The President of the Fourth Chamber (Extended Composition), decided to add that letter to the file. However, since the 2020 hearing took place entirely in open court, the President stated that there was no longer any need to respond to ACT’s request. In addition, the President confirmed that the names of the natural persons would not be disclosed in open court or in the decision closing the proceedings.

73 Following the death of Judge Berke on 1 August 2021, the three judges whose signatures feature on the present judgment continued the deliberations, in accordance with Article 22 and Article 24(1) of the Rules of Procedure.

Law

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

74 As a preliminary point, it should be noted that, by its written observations submitted pursuant to Article 217(1) and (3) of the Rules of Procedure, the applicant withdrew the pleas in law in the action based on the Commission’s jurisdiction and procedural irregularities, which therefore no longer form part of the subject matter of the proceedings following the referral back.

75 The parties disagree as to the scope of the dispute following the referral back as regards the other pleas in the action.

76 The applicant, supported by ACT, submits, in essence, that, having regard to the fact that the initial judgment was set aside in its entirety, the General Court is required to issue a new judgment reconsidering all the grounds and arguments put forward in its application, other than those which it has waived, taking account of the legal framework laid down by the Court of Justice in the judgment on the appeal. The applicant adds, first, that the judgment on the appeal substantially clarified the framework within which the factual and economic evidence must be considered and, second, that the fact that the first ground of appeal has been upheld necessarily affects the basis for assessment of that evidence and the terms in which the contested decision is worded.

77 By contrast, the Commission contends, in essence, that, the findings of the initial judgment are final where they are unrelated to any error of law identified by the Court of Justice in its judgment on the appeal. According to the Commission, that is the case, in particular, where the findings of the General Court have not been challenged in the appeal or where the Court of Justice has dismissed the challenge to the findings in the initial judgment. The Commission adds, first, that it is apparent from paragraphs 147 and 149 of the judgment on the appeal that, in the context of the referral back the General Court is required to consider only the capability of the rebates to restrict competition and, second, that it is clear from paragraphs 109, 137 and 138 of the judgment on the appeal that the starting point for that assessment is the unappealed factual finding that the rebates in question are loyalty rebates. In the alternative, the Commission also submits that, were the General Court to decide to reconsider all the pleas in law and arguments put forward by the applicant in its action, there would be no reason for the General Court to reach different conclusions from those set out in its initial judgment on matters that were not raised on appeal.

78 In the present case, first, the question therefore arises as to whether, in the context of the referral back, all the pleas in law and arguments raised by the applicant in its action are once again brought before the General Court or whether, as, in essence, the Commission maintains, findings contained in the initial judgment may be regarded as having the force of res judicata.

79 The answer to that question is, as the applicant correctly submitted at the 2020 hearing, determined by the wording of the operative part of the judgment on the appeal.

80 It should be recalled that, once the Court of Justice has set aside a judgment and referred the case back to the General Court, the latter Court is seised, pursuant to Article 215 of the Rules of Procedure, of the case by the judgment of the Court of Justice and must rule again on all the pleas in law in support of annulment raised by the applicant, apart from those elements of the operative part not set aside by the Court of Justice and the considerations on which those elements are essentially founded, as those elements have acquired the authority of res judicata (judgment of 14 September 2011, Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraph 83).

81 In that regard, it must be stated that point 1 of the operative part of the judgment on the appeal sets aside the entirety of the initial judgment, since it states that it ‘sets aside’ that judgment.

82 It follows that, as the applicant and ACT maintain, the General Court must, in the present case, rule again on all the grounds and arguments put forward by the parties at first instance, with the exception of those referred to in paragraph 74 above concerning the Commission’s jurisdiction and procedural irregularities, which the applicant has expressly withdrawn.

83 Second, under Article 61 of the Statute of the Court of Justice of the European Union, where the appeal is well founded and the case is referred back to the General Court for judgment, the latter is bound by the decision of the Court of Justice on points of law. Consequently, as the Commission pointed out and as ACT essentially stated at the 2020 hearing, there is nothing, in principle, to preclude the Court to which the case is referred back from making the same assessment as the first-instance Court as regards the pleas in law and arguments which were not examined in the grounds of the judgment on the appeal. In that situation, there is no ‘decision of the Court of Justice on points of law’ within the meaning of the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union, which would bind the referring Court (judgment of 14 September 2011, Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraph 86).

84 In the present case, it must be stated that the only error which justified the setting aside of the initial judgment lies in the fact that ‘in its analysis of whether the rebates at issue were capable of restricting competition, the General Court wrongly failed to take into consideration Intel’s line of argument seeking to expose alleged errors committed by the Commission in the AEC test’ (judgment on the appeal, paragraph 147).

85 It follows that, in accordance with the case-law cited in paragraphs 80 and 83 above, the General Court is required to consider, in the context of the referral back, whether the rebates at issue had the capacity to restrict competition in the light of (i) the clarifications contained in paragraphs 133 and 141 of the judgment on the appeal regarding the principles laid down in the judgment of 13 February 1979, Hoffmann-La Roche v Commission (85/76, EU:C:1979:36), and (ii) the parties’ main and supplementary observations on the conclusions to be drawn from those clarifications. Therefore, while the Court is required to consider Intel’s arguments which seek to demonstrate that the Commission made errors in its AEC analysis, it may, as to the remainder, accept, in the context of its examination, all the findings which are not called into question in the context of the appeal or, in any event, those relating to ‘points of law not decided by the Court’ in the judgment on the appeal.

86 This applies, in particular, to the findings on the legal characterisation of the so-called ‘naked restrictions’, under Title II ‘The heads of claim for annulment of the contested decision’, Section A, entitled ‘Horizontal questions concerning the legal assessments carried out by the Commission’, part 3, entitled ‘The legal characterisation of the so-called “naked restrictions”, in the initial judgment (paragraphs 198 to 220 of that judgment), and the findings on the naked restrictions and the existence of exclusivity rebates, also under Title II, but in Section D, entitled ‘Errors of assessment concerning the practices relating to the various OEMs and MSH’ of the initial judgment (paragraphs 437 to 1522 of that judgment).

87 As regards the findings concerning naked restrictions, Intel and ACT submit, in their main observations, that it is apparent from the judgment on the appeal that the Commission ought to have examined, in the contested decision, whether the naked restrictions were capable of producing the foreclosure effects alleged against the applicant, by applying the factors listed in paragraph 139 of the judgment on the appeal and the AEC test. ACT adds that naked restrictions are ultimately a form of exclusivity rebate or exclusivity payment and that the principle of legal certainty dictates that those two pricing practices are not to be distinguished from one another.

88 It should be noted at the outset that it is apparent from recital 1641 et seq. of the contested decision that a distinction was drawn between Intel’s actions towards Acer, HP and Lenovo, which are characterised as naked restrictions, and Intel’s other actions, which, for their part, were covered by the AEC test applied in the contested decision. In that regard, that distinction arises from the fact that the naked restrictions are based on two pillars, the second of which distinguishes them from Intel’s other actions referred to in the contested decision. Apart from the fact that Intel offered rebates or payments to the OEMs concerned (HP, Acer and Lenovo respectively), they were requested to abstain from certain specific actions as consideration for those payments, namely to cancel or restrict in one way or another the marketing of certain products with AMD-based CPUs.

89 More specifically, as those practices were described by the Court in paragraph 198 of the initial judgment, Intel granted payments subject to the following conditions: – first, HP was to direct HP’s AMD-based x86 CPU corporate desktops to small and medium-sized business (SMB) and the Government, Educational and Medical (‘GEM’) customers rather than to enterprise business customers; – second, HP was to preclude its channel partners from stocking HP’s AMD-based x86 CPU corporate desktops so that such desktops would only be available to customers by ordering them from HP either directly or via HP channel partners acting as sales agent; – third, Acer, HP and Lenovo were to delay or cancel the launch of computers equipped with AMD CPUs.

90 In the light of the foregoing, first of all, the General Court observes that nothing in the judgment on the appeal permits the inference that the Court of Justice held that the method defined in paragraph 138 et seq. of the judgment on the appeal should also apply to naked restrictions. Similarly, it does not in any way follow from that judgment that the Court of Justice required an AEC test be carried out in relation to naked restrictions, as the applicant maintained at first instance. Although those practices were clearly distinguished both in the Commission’s contested decision and in the initial judgment of the General Court, it is clear that the judgment on the appeal does not analyse those practices as such, but merely refers to them in paragraphs 11 and 15 thereof, in the context of the background to the dispute and the summary of the procedure before the General Court, without further assessment.

91 As the Commission correctly observes, the Court of Justice’s summary of the first ground of appeal and its statement of reasons for its assessment in paragraph 137 et seq. of its judgment support the argument that the Court of Justice in no way assessed the naked restrictions at issue. It is clear from those paragraphs that the Court of Justice assessed only the fidelity rebates within the meaning of the judgment of 13 February 1979, Hoffmann-La Roche v Commission (85/76, EU:C:1979:36).

92 That is all the more evident from reading paragraph 141 of the judgment on the appeal, which states that ‘if, in a decision finding a rebate scheme abusive, the Commission carries out [an AEC] analysis, the General Court must examine all of the applicant’s arguments seeking to call into question the validity of the Commission’s findings concerning the foreclosure capability of the rebate concerned’. Since the Commission failed entirely to carry out any AEC analysis of the naked restrictions and since the General Court, in essence, endorsed that approach in paragraphs 198 to 220 of the initial judgment, there is no doubt that the Court of Justice was referring to the ‘legal test’ to be applied to the rebates and payments granted to the OEMs and MSH respectively and not to naked restrictions.

93 Accordingly, contrary to what Intel and ACT assert, it is not apparent from the judgment on the appeal that naked restrictions ought to be subject, as regards establishing their abusive nature, to the same principles as the rebates at issue.

94 Next, contrary to ACT’s assertion, the naked restrictions as identified by the Commission are characterised by the fact that they are practices based on two pillars, the second of which distinguishes them from Intel’s other actions referred to in the contested decision, as stated in paragraph 88 above. Consequently, the principle of legal certainty does not preclude conditional rebates and naked restrictions from being subject to different legal tests, on the ground that a distinction between those two types of conduct is not likely to be applied consistently by the competent authorities and courts.

95 Lastly, in their main and supplementary observations, Intel and ACT do not put forward any argument capable of demonstrating that certain factual matters considered in the initial judgment relating to naked restrictions ought to be reconsidered following the referral back.

96 In those circumstances, the Court considers that it is necessary to accept the findings in paragraphs 198 to 220, 799 to 873, 1043 to 1144, 1222 to 1361 and 1371 of the initial judgment, solely in so far as they concern naked restrictions and their unlawfulness under Article 102 TFEU.

97 As regards the assessments concerning the rebates at issue being characterised as ‘exclusivity rebates’ under Title II, Section D, of the initial judgment, the General Court also considers that those should be accepted. First, they were not examined in the grounds of the judgment on the appeal and cannot therefore be regarded as a point of law decided by the Court of Justice, as provided for in the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union. Second, it must be observed, as the Commission did at the 2020 hearing, that the applicant has not put forward any argument capable of demonstrating that certain factual matters considered in the initial judgment for the purposes of characterising the rebates at issue as ‘exclusivity rebates’ ought to be re-examined, in particular following the clarifications provided in the judgment on the appeal with regard to the principles laid down in the judgment of 13 February 1979, Hoffmann-La Roche v Commission (85/76, EU:C:1979:36).

98 In those circumstances, the Court considers it appropriate to accept the considerations set out in Title II, Section D, of the initial judgment that the Commission, in the contested decision, established that (i) the applicant had informed Dell that, from December 2002 to December 2005, the level of the rebates granted under a meet-competition programme was subject to an exclusivity condition (initial judgment, paragraphs 444 to 584), (ii) the two agreements concluded between the applicant and HP between November 2002 and May 2005 (‘the HPA agreements’) consisted of exclusivity rebates (initial judgment, paragraphs 673 to 798), (iii) the applicant had granted exclusivity rebates to NEC between October 2002 and November 2005 (initial judgment, paragraphs 900 to 1018), (iv) the applicant and Lenovo had concluded a declaration of intent, the 2007 Memorandum of Understanding (‘the 2007 MoU’) which was subject to an unwritten exclusivity condition (initial judgment, paragraphs 1045 to 1208), and (v) the applicant had made payments to MSH between October 2002 and December 2007 which were conditional on MSH selling exclusively computers equipped with Intel CPUs (initial judgment, paragraphs 1372 to 1502).

99 It should be added that the considerations referred to in paragraph 98 above are subject to two qualifications.

100 First of all, the considerations referred to in paragraph 98 above, according to which the Commission was not required to quantify precisely the part of the rebates constituting the consideration for exclusivity (initial judgment, paragraphs 453, 538, 916 and 1500), apply only in so far as they are called upon in support of the rebates at issue being characterised as ‘exclusivity rebates’.

101 Next, since the General Court is bound by the decision of the Court of Justice on the point of law in the judgment on the appeal which is set out in paragraph 84 above, it accepts the considerations referred to in paragraph 98 above, except for those from which it is apparent, first, that it was not necessary to apply the AEC test in the context of analysing the capacity of the rebates at issue to restrict competition and second, that characterising the rebates at issue as exclusivity rebates was sufficient for them also to be characterised as abusive under Article 102 TFEU.

102 In the light of the foregoing considerations, it must be held, in response to the parties’ arguments, that the subject matter of the dispute concerns, in essence, the General Court’s analysis of the capacity of the rebates at issue to restrict competition in the light, first, of the clarifications provided regarding the principles laid down in the judgment of 13 February 1979, Hoffmann-La Roche v Commission (85/76, EU:C:1979:36), contained in paragraph 133 et seq. of the judgment on the appeal, and, second, the parties’ observations on the conclusions to be drawn from those clarifications.

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

103 In its supplementary observations, the Commission submits that the applicant’s main observations are, to a substantial extent, inadmissible or, at least, irrelevant. According to the Commission, the proper function of written observations pursuant to Article 217 of the Rules of Procedure is to comment on the implications of the judgment on the appeal in the context of the referral back. In view of the fact that it was held in the judgment on the appeal that the failure to address Intel’s arguments concerning the AEC test was an error, but that no findings were made as to whether the AEC test in the contested decision was well founded, there is, in the Commission’s view, nothing in the judgment on the appeal that justifies the applicant devoting a substantial part of its observations to restating the arguments put forward concerning the AEC test.

104 The Commission also contends that the judgment on the appeal does not constitute a new factor justifying the applicant being able to amend or enlarge the complaints made in the proceedings which gave rise to the initial judgment and maintains, on that basis, that certain arguments set out in the main observations of the applicant or ACT are inadmissible.

105 In that regard, it is appropriate to recall the settled case-law that, under Article 76(1)(d) of the Rules of Procedure, an applicant is required to state in the application the subject matter of the proceedings and the form of order sought (see judgment of 20 May 2009, VIP Car Solutions v Parliament, T‑89/07, EU:T:2009:163, paragraph 110 and the case-law cited). Moreover, according to Article 84(1) of the Rules of Procedure, which is applicable by virtue of Article 218 of those rules, where, as in the present case, the General Court is seised of a case by a judgment of the Court of Justice referring it back, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. Although Article 84(2) of those rules authorises, in certain circumstances, new pleas in law to be introduced in the course of proceedings, that provision cannot in any circumstances be interpreted as authorising the applicant to bring new claims before the EU Courts and thereby to modify the subject matter of the proceedings or the nature of the action (judgments of 20 May 2009, VIP Car Solutions v Parliament, T‑89/07, EU:T:2009:163, paragraph 110, and of 13 June 2012, Insula v Commission, T‑246/09, not published, EU:T:2012:287, paragraphs 100 and 103).

106 It follows that, following a referral judgment of the Court of Justice, the parties are not entitled, in principle, to rely on pleas which were not raised in the procedure which gave rise to the judgment of the General Court set aside by the Court of Justice (judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 71). Only a plea which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application, and which is closely connected therewith must be declared admissible (judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo, C‑56/18 P, EU:C:2020:192, paragraph 66).

107 It should also be recalled that arguments submitted by an intervener are not admissible unless they fall within the framework provided by the forms of order and the pleas in law of the main parties (judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 51).

108 In the present case, the action in Case T‑286/09 was defined on the basis of the application, referred to in paragraph 36 above.

109 In that respect, it should be noted that, in the application, the applicant submitted that, in the contested decision, the Commission had made a series of ‘manifest errors’ when applying the AEC test, and then set out in detail its claims concerning those errors as regards the rebates and payments granted to Dell, Lenovo, HP, NEC and MSH respectively. Therefore, Article 84(1) of the Rules of Procedure does not preclude the applicant from devoting a substantial part of its main observations to restating the arguments in the application concerning the AEC test, or even to amplify those arguments. Such a practice cannot be treated as equivalent to introducing new pleas in law in the course of the proceedings.

110 In those circumstances, it is necessary to reject the Commission’s argument regarding Article 217 of the Rules of Procedure, according to which the applicant’s main observations are, to a substantial extent, inadmissible or, at least, irrelevant.

111 However, the Commission is correct in submitting that, despite the fact that under Article 61 of the Statute of the Court of Justice of the European Union the General Court is bound by the interpretation of the law given in the judgment on the appeal, the fact remains that the General Court is also bound by the pleas raised by the applicant in the application and that the appeal does not, as such, constitute a new factor justifying an amendment to or enlargement of Intel’s complaints against the contested decision. The Commission is also fully entitled to maintain that, following the referral back, ACT cannot put forward arguments in support of the applicant which do not correspond to pleas raised by the applicant in the application.

112 The Commission’s allegations that certain arguments put forward in the applicant’s main observations or in ACT’s main observations have amended or enlarged the complaints made in the proceedings which gave rise to the initial judgment will, if necessary for the purposes of resolving the present case, be considered at a later point in the present judgment (see in particular paragraphs 401 and 506 below).

Substance

The heads of claim for annulment of the contested decision

113 The applicant, supported by ACT, submits that the contested decision must be annulled on the ground, first, that it is founded on an incorrect legal assessment, second, that the contested decision failed properly to assess and did not take due account of the criteria referred to in paragraph 139 of the judgment on the appeal and, third, that the contested decision contains an AEC analysis which is vitiated by several errors.

114 The Commission asserts, in essence, that the contested decision must be upheld in its entirety on the grounds that, first, it is consistent with the approach adopted by the judgment on the appeal, second, it took account of all the criteria referred to in paragraph 139 of the judgment on the appeal, and, third, the AEC analysis is not vitiated by any errors.

115 In the present case, as has been stated in paragraph 102 above, the General Court is required to consider, in the light of the judgment on the appeal, the substance of the pleas and arguments put forward by the applicant to show that the rebates at issue were not capable of restricting competition. To that end, it is necessary, first of all, to recall the method defined by the Court of Justice for analysing whether rebates such as those at issue in the present case are capable of restricting competition and, second, to draw the key lessons from them.

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

116 In the first place, the Court of Justice recalled, in paragraphs 133 to 137 of the judgment on the appeal, the nature and purpose of Article 102 TFEU. Referring in particular to the judgment of 27 March 2012, Post Danmark (C‑209/10, EU:C:2012:172), the Court of Justice, in essence, emphasised that competition on the merits may lead to the exclusion from the market of less efficient competitors (judgment on the appeal, paragraph 134), while recalling the special responsibility on undertakings in a dominant position not to impair genuine, undistorted competition (judgment on the appeal, paragraph 135). Moreover, the Court of Justice pointed out that not all competition by means of price could be regarded as legitimate (judgment on the appeal, paragraph 136).

117 In the second place, in paragraph 137 of the judgment on the appeal, the Court of Justice recalled its settled case-law resulting from the judgment of 13 February 1979, Hoffmann-La Roche v Commission (85/76, EU:C:1979:36) (‘the Hoffmann-La Roche case-law’), according to which, in essence, loyalty rebates constituted an abuse of a dominant position within the meaning of Article 102 TFEU.

118 In the third place, however, the Court of Justice held, in paragraph 138 of the judgment on the appeal, that the Hoffmann-La Roche case-law had to be clarified in the situation where an undertaking in a dominant position ‘submit[ted], during the administrative procedure, on the basis of supporting evidence, that its conduct [had not been] capable of restricting competition and, in particular, of producing the alleged foreclosure effects’.

119 In relation to such a situation, the Court of Justice set out, in paragraph 139 of the judgment on the appeal, the criteria to be taken into account in determining whether there had been an infringement of Article 102 TFEU. According to the Court of Justice, the Commission is required to analyse, first, the extent of the undertaking’s dominant position on the relevant market, second, the share of the market covered by the contested practice, third, the conditions and arrangements for granting the rebates in question, and fourth, their duration and their amount; but it is also required to assess, fifth, the possible existence of a strategy aiming to exclude competitors that are at least as efficient as the dominant undertaking from the market.

120 In the fourth place, in paragraph 141 of the judgment on the appeal, the Court of Justice held that ‘if, [as in the present case], in a decision finding a rebate scheme abusive, the Commission carrie[d] out [an analysis of foreclosure capability], the General Court [had to] examine all of the applicant’s arguments seeking to call into question the validity of the Commission’s findings concerning the foreclosure capability of the rebate concerned’.

121 In the fifth place, in paragraph 142 of the judgment on the appeal, the Court of Justice stated that, although the Commission had stated in the contested decision that ‘the rebates at issue were by their very nature capable of restricting competition such that an analysis of all the circumstances of the case and, in particular, an AEC test were not necessary in order to find an abuse of a dominant position (see, inter alia, paragraphs 925 and 1760 of that decision), it nevertheless carried out an in-depth examination of those circumstances, setting out, in paragraphs 1002 to 1576 of that decision, a very detailed analysis of the AEC test, which led it to conclude, in paragraphs 1574 and 1575 of that decision, that an as-efficient competitor would have had to offer prices which would not have been viable and that, accordingly, the rebate scheme at issue was capable of having foreclosure effects on such a competitor’.

122 It is for that reason that the Court of Justice concluded, in paragraphs 143 and 144 of the judgment on the appeal, that, since the AEC test had played an important role in the Commission’s assessment of whether the rebate scheme at issue was capable of having foreclosure effects on as-efficient competitors, the General Court was required to examine all of Intel’s arguments concerning the AEC test applied by the Commission in the contested decision, something which it had failed to do.

II. The principles arising from the judgment on the appeal

123 It should be noted, as the parties do, that the judgment on the appeal clarifies the Hoffmann-La Roche case-law, from which three instructive inferences can be drawn.

124 First, it is apparent from paragraphs 137 and 138 of the judgment on the appeal that, although a system of rebates set up by an undertaking in a dominant position on the market may be characterised as a restriction of competition, since, given its nature, it may be assumed to have restrictive effects on competition, the fact remains that what is involved is, in that regard, a mere presumption and not a per se infringement of Article 102 TFEU, which would relieve the Commission in all cases of the obligation to conduct an effects analysis.

125 Second, the Court of Justice has held that, where an undertaking in a dominant position ‘submits, during the administrative procedure, on the basis of supporting evidence, that its conduct was not capable of restricting competition and, in particular, of producing the … foreclosure effects [alleged against it]’, the Commission must analyse the foreclosure capability of the scheme of rebates by applying the five criteria set out in paragraph 139 of the judgment on the appeal (see paragraph 119 above). Having regard to the wording of paragraph 139 of the judgment on the appeal, the Commission is, as a minimum, required to examine those five criteria for the purposes of assessing the foreclosure capability of a system of rebates, such as that at issue in the present case.

126 Lastly and third, it must be pointed out that, although the Court of Justice did not hold that an AEC test necessarily had to be carried out in order to examine the foreclosure capability of all rebate systems, it follows from the judgment on the appeal, in essence, that, where the Commission has carried out an AEC test, that test is one of the factors which must be taken into account by the Commission to assess whether the rebate scheme is capable of restricting competition.

127 It is in the light of those instructive inferences and the method defined by the Court of Justice that the General Court will examine the pleas and arguments raised by the applicant to challenge the capability of the rebates at issue to restrict competition, starting first with an assessment of the substance of the argument put forward by the applicant and ACT that, in essence, the contested decision is founded on an incorrect legal analysis which is capable, in itself, of resulting in it being set aside.

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

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

128 First, as they argued at first instance, the applicant and ACT maintain that the Commission relied on a legal analysis vitiated by a fundamental error which had consequences for the entire contested decision and must, in itself, cause that decision to be set aside.

129 In the view of the applicant and ACT, the contested decision’s finding of an infringement can be upheld only if it can be shown that it is based on a legal analysis consistent with that described in paragraphs 138 and 139 of the judgment on the appeal. However, in their view, it is clear that that is not so in the present case. Rather than interpreting the Hoffmann-La Roche case-law as meaning that a mere presumption of illegality arises, the Commission simply found that the rebates at issue were by their very nature abusive, with the result that it was not necessary to consider and, a fortiori, to take account of their foreclosure capability in coming to the conclusion that they were abusive.

130 Second, ACT adds, in essence, that, even if the contested decision were to contain findings concerning the capacity of the rebates at issue to restrict competition, such additional findings would in no way form part of the legal analysis carried out in order to determine that those rebates were abusive and infringed Article 102 TFEU. In addition, ACT observes that the Commission took the view that factors such as market coverage, the duration and the amount of the rebates were irrelevant for the purpose of establishing the existence of an abuse, confirming that they had not been taken into account for that purpose. In the light of the method defined in the judgment on the appeal, ACT argues that that is sufficient for a finding to be made that the entire analysis of the contested decision is vitiated by an error which justifies its annulment.

131 The Commission disputes the substance of the argument that the contested decision is founded on an incorrect legal analysis which is capable, in itself, of causing it to be set aside.

132 At the 2020 hearing, in response to a question from the General Court, the Commission stated, in essence, that the contested decision was based primarily on a traditional interpretation of the Hoffman-La Roche case-law. That is why it argued in its pleadings at first instance that the contested decision did not need to rely on the AEC test, on the ground that that was irrelevant. It observed, however, that the Court of Justice had stated, in paragraph 143 of the judgment on the appeal, that the AEC test had played an important role in its assessment of whether the rebate scheme at issue was capable of having foreclosure effects on as-efficient competitors, which was consistent with recital 925 of the contested decision. Lastly, the Commission observed, in essence, that, although it had not relied primarily on the AEC test in the contested decision, that test had been carried out as a complement and had made it possible to demonstrate that the rebates at issue were capable of causing anticompetitive foreclosure.

133 In that regard, it should be stated at the outset that it is common ground, in the present case, that the applicant submitted, during the administrative procedure, on the basis of supporting evidence, that its conduct was not capable of restricting competition and, in particular, was not capable of producing the alleged foreclosure effects, which therefore required, as is apparent from paragraphs 138 and 139 of the judgment on the appeal, the Commission to analyse the foreclosure capability of the system of rebates. Furthermore, it is apparent in particular from recitals 920 to 926, 950, 972, 981, 989, 1000 and 1001 of the contested decision and from the explanations provided by the Commission in its pleadings at first instance and at the 2020 hearing that the Commission took the view that, in the light of the principles stemming from the judgment of 13 February 1979, Hoffmann-La Roche v Commission (85/76, EU:C:1979:36), it was not necessary to demonstrate that the rebates at issue were capable of having a foreclosure effect in order to establish an infringement of Article 102 TFEU, since those rebates were by their nature anticompetitive.

134 In the first place, as regards the abovementioned recitals of the contested decision, all of which are found in the part of that decision dealing with the conditionality of the rebates and preceding the AEC analysis, the Commission stated, in particular, in recital 923 of the contested decision that, ‘contrary to what Intel argue[d], however, this [did] not require evidence of actual foreclosure’ and that, ‘in addition, a violation of Article [102 TFEU] [might] also result from the anticompetitive object of practices pursued by a dominant undertaking’.

135 In addition, in recital 925 of the contested decision, the Commission stated as follows: ‘Whilst the findings referred to in the preceding recital, in the absence of any objective justification, are in themselves sufficient to find an infringement under Article [102 TFEU] according to the case[-]law, the Commission will in addition demonstrate in sections 4.2.3 to 4.2.6, that, on top of fulfilling the conditions of the case-law referred to in recitals (920), (921) and (923), the conditional rebates that Intel granted to Dell, HP, NEC and Lenovo and the conditional payments granted to MSH were capable of causing or likely to cause anticompetitive foreclosure (which is likely to result in consumer harm). Although not indispensable for finding an infringement under Article [102 TFEU] according to the case[-]law, one possible way of showing whether Intel’s rebates and payments were capable of causing or likely to cause anticompetitive foreclosure is to conduct an as-efficient-competitor analysis (section 4.2.3). On the basis of the results of this analysis and the qualitative and quantitative evidence (sections 4.2.4 and 4.2.5), and given the lack of objective justification and efficiencies (section 4.2.6), the Commission concludes that Intel’s conditional rebates to Dell, HP, NEC and Lenovo, as well as Intel’s conditional payments to MSH, were an abuse under Article [102 TFEU] which deserves its particular attention.’

136 In recital 926 of the contested decision, which introduces the Commission’s analysis of the nature and functioning of the rebates, it is stated, in particular, that ‘although this is not indispensable according to the case-law quoted in recitals 920, 921 and 923 [of that decision], the Commission will show how the conditional rebate schemes prevented or made it more difficult for each of those OEMs to source x86 CPUs from AMD … [and] will show how the Intel conditional payment schemes to MSH operated as an incentive for MSH to sell exclusively Intel-based PCs, and prevented or made it more difficult for MSH to sell AMD-based PCs’.

137 As regards recitals 950 (concerning Dell), 972 (concerning HP), 981 (concerning NEC), 989 (concerning Lenovo) and 1000 (concerning MSH) of the contested decision, which concludes the analysis of the conditionality of the rebates granted to each OEM or to MSH, the Commission systematically took the view, first of all, that the level of the rebates or payments granted by Intel to those OEMs or to MSH was de facto conditional on their obtaining all of their x86 CPU requirements from Intel; next, that those rebates or payments fulfilled the conditions of the case-law referred to in recitals 920, 921 and 923 of the contested decision for characterisation as abusive and, lastly, that those rebates or payments had the effect of (i) restricting the freedom of the OEMs or of MSH to choose their sources of x86 CPU supply and (ii) preventing other competitors from supplying those OEMs or MSH with x86 CPUs.

138 Lastly, in recital 1001 of the contested decision, which concludes the analysis in Section 4.2.2, entitled ‘Nature and operation of the rebates’, the Commission found as follows: ‘On the basis of the evidence presented in sections 4.2.2.2 to 4.2.2.6 [which concern the nature and operation of the rebates to the OEMs and MSH] and the case[-]law referred to in section 4.2.1 [namely the Hoffmann-La Roche case-law], it is concluded that the level of the rebates granted by Intel to Dell, HP, NEC between the fourth quarter of 2002 and December 2005 was de facto conditional upon those customers sourcing their x86 CPUs exclusively (Dell) or, within defined segments, almost exclusively (HP and NEC) from Intel … The rebates and payments in question constitute fidelity rebates which fulfil the conditions of the relevant case-law for qualification as abusive (see recitals (920), (921) and (923). In addition, they had the effect of restricting the freedom to choose of the respective OEMs and MSH.’

139 In the second place, as regards the explanations provided by the Commission in its written pleadings at first instance and at the 2020 hearing, the Commission stated, first, in paragraph 144 of the defence, as follows: ‘Contrary to the Application …, it is apparent from the structure and the text of the Decision that the Commission does not need to prove the potential effects of Intel’s practices. Recitals 920 to 925 explain very clearly the role of the AEC analysis in the [contested decision], leaving no doubt that the analysis in the preceding recitals establishes, absent an objective justification, the unlawfulness of Intel’s exclusivity rebates and payments because they constitute fidelity rebates within the meaning of the Hoffmann-La Roche line of case-law and they pursued an anticompetitive object/were part of an anticompetitive strategy. For each of these reasons, the [contested decision] concludes ([in] recital 925) that establishing the potential foreclosure effects of Intel’s exclusivity rebates and payments was unnecessary for finding that these practices infringe Article 102 TFEU.’

140 Second, in paragraph 145 of the defence, the Commission stated that ‘the contested Decision ([in] recital 925) also clearly explain[ed] that the Commission established the potential effects of Intel’s rebates only to show that Intel’s practices deserved the Commission’s particular attention’.

141 Third, in paragraph 283 of the defence, the Commission claimed that, ‘contrary to the Applicant’s contentions, the Commission was under no obligation to show that Intel’s exclusivity rebates were capable of foreclosing an as-efficient a competitor’ and that, ‘as stated in recitals 925 and 926 of the [contested decision], the Commission’s findings on the potential effects of Intel’s exclusivity rebates on the market were not part of the legal assessment made to establish their abusive nature but rather a factor that led the Commission to conclude that the infringement merited its particular attention’.

142 Fourth, in paragraph 109 of the rejoinder, the Commission observed that, ‘as pointed out in the [contested decision], the efforts devoted to the AEC analysis [were] not to be taken as an indication that the Commission intended to depart from long-standing case-law on fidelity rebates’.

143 Fifth and last, as regards the coverage rate, duration and amount of discounts, the Commission, first of all, stated in paragraph 68 of the rejoinder that the ‘issue Intel raise[d] about duration [was] legally irrelevant’, since ‘the Decision in Hoffmann-La Roche [had not] identif[ied] duration as a relevant element in the Commission’s assessment of the conduct as abusive’. Next, in paragraph 166 of the defence, it stated that ‘the applicant’s argument [that it failed to take account of the level of the rebates] is misdirected [on the ground that], as noted [in] recital 1620 [of the contested decision], the Decision objects not to the level of the rebates but to the exclusivity for which they [had been] given and to the anticompetitive object that they pursued’. Lastly, in paragraphs 169 and 170 of the defence, the Commission stated that, ‘if Intel wish[ed] to argue that its exclusivity rebates [had] restricted competition “only” with regard to certain types of x86 CPUs, the Commission would [have] expect[ed] to find such contentions in the application’s section on the level of the fines’, since ‘nothing in the case-law on fidelity rebates indicate[d] that their unlawfulness depend[ed] on whether they cover[ed] the entirety of a market or “solely” one segment’.

144 It therefore follows from paragraphs 134 to 143 above that the Commission inferred from the Hoffmann-La Roche case-law, first, that the rebates at issue were by their nature anticompetitive, with the result that there was no need to demonstrate foreclosure capability in order to establish an infringement of Article 102 TFEU. Second, although the contested decision contains an additional analysis of the foreclosure capability of those rebates, the Commission took the view that, in accordance with that case-law, it was not required to take that analysis into account in order to conclude that those rebates were abusive. Third and lastly, still on the basis of that same case-law, the Commission held, inter alia, that a number of factors were irrelevant for determining whether there was abuse.

145 It must be stated that that position is not consistent with the Hoffman-La Roche case-law, as clarified by the Court of Justice in paragraphs 137 to 139 of the judgment on the appeal. It must therefore be found that the applicant and ACT are correct in maintaining that the Commission vitiated the contested decision by an error of law in taking as a starting point the premiss that, in essence, the Hoffman-La Roche case-law allowed it simply to find that the rebates at issue infringed Article 102 TFEU on the ground that they were by their very nature abusive, without necessarily having to take account of the capability of those rebates to restrict competition in order to reach the conclusion that they constituted an abuse.

146 It is true that the Commission did state, in recital 925 of the contested decision, that it had also demonstrated that Intel’s rebates granted to the OEMs and its conditional payments granted to MSH were capable of causing or likely to cause anticompetitive foreclosure, by means of conducting an AEC analysis, set out in Section 4.2.3 of the contested decision, and taking account of the qualitative and quantitative evidence, set out in Sections 4.2.4 and 4.2.5 of that decision. However, it is apparent from the contested decision that the findings in Sections 4.2.3 to 4.2.5 of the contested decision were not regarded as necessary for the legal analysis which was carried out in order to establish that Intel’s practices were abusive.

147 It follows that the Commission, in the contested decision, took the view that the AEC test was not necessary for the purposes of assessing whether Intel’s practices were abusive and for concluding that those practices were abusive.

148 In that regard, it is necessary to reject the argument put forward by the Commission at the 2020 hearing that, in essence, that conclusion is inconsistent with the fact that the Court of Justice stated, in paragraph 143 of the judgment on the appeal, that the AEC test had played an important role in the Commission’s assessment of whether the rebate scheme at issue was capable of having foreclosure effects on as-efficient competitors. Indeed, when read in the light of paragraph 142 of the judgment on the appeal, that paragraph 143 must be interpreted as meaning that the Court of Justice concluded that the AEC test played an important role given the detailed background and the number of recitals devoted to the test in the contested decision. By contrast, contrary to the Commission’s implication, the wording of paragraph 143 of the judgment on the appeal does not support the argument that, in essence, the Court of Justice ruled that the AEC test had formed part of the evidence which the Commission had considered necessary in order to conclude that the rebates were abusive.

149 In the light of all the foregoing considerations, it is necessary to uphold the argument that the contested decision is vitiated by an error of law. However, as is apparent from paragraphs 143 and 144 of the judgment on the appeal, the AEC test played an important role in the Commission’s assessment of whether the rebate scheme at issue was capable of having foreclosure effects on as-efficient competitors and, in those circumstances, the General Court is required to examine all of Intel’s arguments concerning that test.

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

1. The scope of the Court’s review

150 The system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 47 and the case-law cited). The scope of that judicial review 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 EU Courts, in law and in fact, in the light of the pleas raised by an applicant and taking into account all the relevant evidence submitted by the latter (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 48 and the case-law cited). It should, however, be recalled that the EU Courts cannot, in reviewing the legality of acts under Article 263 TFEU, substitute their own reasoning for that of the author of the act in question (see judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 89 and the case-law cited).

151 Before examining the substance of the applicant’s argument, it is appropriate, first, to set out general considerations concerning the AEC test and, second, to recall the rules on the burden of proof and the standard of proof required.

2. General considerations concerning the AEC analysis

152 The starting point for the AEC test, as defined in recital 1003 et seq. of the contested decision and applied by the Commission in the present case, is that, given, in particular, the nature of its product, its brand image and its profile, Intel was an unavoidable trading partner and that the OEMs would always have purchased at least part of their CPU requirements from Intel, regardless of the quality of products offered by alternative suppliers. Therefore, customers were willing and able to switch only a certain share of their demand to that alternative supplier (‘the contestable share’). Intel’s power to use the non-contestable share as leverage to reduce the price on the contestable share of the market was the result of that status as an unavoidable trading partner.

153 As the Court observed in paragraph 141 of the initial judgment, the AEC test carried out in the contested decision starts from the premiss that an as-efficient competitor, which seeks to obtain the contestable share of the orders hitherto satisfied by a dominant undertaking, must compensate the customer for the exclusivity rebate which it would lose if it purchased a smaller portion than that stipulated by the exclusivity or quasi-exclusivity condition. The AEC test is designed to determine whether the competitor which is as efficient as the undertaking in a dominant position, which faces the same costs as the latter, can still cover its costs in that case.

154 The AEC test, as applied in the present case, establishes the price at which a competitor as efficient as Intel would have had to offer its x86 CPUs in order to compensate an OEM for the loss of any exclusivity payment granted by Intel. In the AEC test, that price is called the ‘effective price’ or ‘EP’.

155 In principle, the portion of the total rebates for which an as-efficient competitor must offer compensation comprises only the amount of the rebates which is subject to the exclusive supply condition, excluding quantity rebates (‘the conditional portion of the rebates’). As is apparent in particular from recital 1460 of the contested decision, in order to take into consideration only the conditional part of a payment, the AEC test refers, in the present case, to the average sales price (‘the ASP’), namely the list price, after deduction of conditional discounts.

156 The smaller the contestable share and, therefore, the smaller the quantity of products for which the alternative supplier may compete, the greater the likelihood that the exclusivity payment will be capable of foreclosing an as-efficient competitor. If the loss of payments granted by Intel to its customer must be spread over a small quantity of products offered by the alternative supplier in the contestable share, that leads to an appreciable reduction in the effective price. It is therefore more probable that the effective price will be below Intel’s measure of viable cost.

157 The effective price must be compared with Intel’s measure of viable cost. Intel’s measure of viable cost adopted in the contested decision is that of the average avoidable cost (‘AAC’).

158 As is apparent in particular from recital 1006 of the contested decision, it may be concluded that a system of exclusivity payments is capable of foreclosing market access for equally efficient competitors if the effective price is below Intel’s AAC. In that situation, the AEC test has a negative result. If, by contrast, the effective price is above the AAC, an as-efficient competitor is deemed to be able to cover its costs and to therefore be in a position to enter the market. In that situation, the AEC test has a positive result.

159 It is in the light of those general considerations that the Court must examine the substance of the applicant’s arguments that the AEC analysis is vitiated by numerous errors.

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

160 The applicant refers to the case-law of the EU Courts and states, in particular, that competition cases are quasi-criminal in nature, which means that they require a high standard of proof and that the presumption of innocence applies.

161 As was pointed out in paragraph 62 et seq. of the initial judgment, according to Article 2 of Regulation No 1/2003, in any proceedings for the application of Article 102 TFEU, the burden of proving an infringement of that article rests on the party or the authority alleging the infringement, that is to say, in the present case, the Commission. Furthermore, according to well-established case-law, any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine (judgments of 8 July 2004, JFE Engineering v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, EU:T:2004:221, paragraph 177, and of 12 July 2011, Hitachi and Others v Commission, T‑112/07, EU:T:2011:342, paragraph 58).

162 In the latter situation, account must be taken of the principle of the presumption of innocence, which constitutes a general principle of EU law, currently laid down in Article 48(1) of the Charter of Fundamental Rights of the European Union (see judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 72 and the case-law cited). In addition, according to the case‑law of the Court of Justice, the principle of the presumption of innocence applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 73 and the case-law cited).

163 Although the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by that institution, viewed as a whole, meets that requirement, as is stated in the case-law concerning the implementation of Article 101 TFEU (see judgment of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 52 and the case-law cited). That principle also applies in cases concerning the implementation of Article 102 TFEU (judgment of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 477).

164 With respect to the probative force of the evidence relied on by the Commission, a distinction should be drawn between two situations.

165 First, where the Commission finds that there has been an infringement of the competition rules based on the supposition that the facts established cannot be explained other than by the existence of anticompetitive behaviour, the EU Courts will find it necessary to annul the decision in question where those undertakings put forward arguments which cast the facts established by the Commission in a different light and which thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in concluding that an infringement occurred. In such a case, it cannot be considered that the Commission has adduced proof of an infringement of competition law (see, to that effect, judgments of 28 March 1984, Compagnie royale asturienne des mines and Rheinzink v Commission, 29/83 and 30/83, EU:C:1984:130, paragraph 16, and of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission, C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraphs 126 and 127).

166 Second, when the Commission relies on evidence which is, in principle, sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance was not capable of affecting the probative value of the evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, on the one hand, the existence of the circumstance on which it relies and, on the other, that that circumstance calls into question the probative value of the evidence relied on by the Commission (see, to that effect, judgment of 15 December 2010, E.ON Energie v Commission, T‑141/08, EU:T:2010:516, paragraph 56 and the case-law cited).

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

167 The applicant claims, in essence, that the AEC analysis carried out for all the OEMs and for MSH contains numerous errors, in particular as regards the contestable share, the conditional portion of the rebates and the AAC. It presents general arguments in respect of which it subsequently provides more detail for each OEM and for MSH, regarding each of the three aspects mentioned above.

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

168 As regards the AEC test carried out in relation to the rebates granted to Dell, Intel submits, in essence, that the Commission makes errors when it assesses each of the three key elements of the AEC test, namely the contestable share, the conditional portion of the rebates and the costs. According to Intel, in most cases, correcting only one of those errors is sufficient to demonstrate that it satisfies the AEC test, even if the other errors are left uncorrected. Intel submits that the Commission selected data from inconsistent sources in order to slant the results against Intel and that the Commission made selective and inconsistent use of the documents. That is made clear, in particular, if the results of the Commission’s AEC test analysis are compared with the facts as they actually occurred when Dell began sourcing from AMD in 2006.

169 In addition, Intel asserts that the Commission acknowledges, in the contested decision, that the rebates passed the AEC test during the first four quarters concerned (between December 2002 and October 2003). Intel argues that, despite that, in recital 1281 of the contested decision, the Commission inexplicably concluded that the rebates granted by Intel ‘from December 2002 to December 2005’ were ‘capable of having or likely to have anticompetitive foreclosure effects’. According to the applicant, the contested decision does not even attempt to explain or to justify that inconsistency in its reasoning.

170 The Commission submits, in essence, that the contested decision shows that the exclusivity rebates granted to Dell were capable of foreclosing an as-efficient competitor. In particular, it did not state that the rebates which Intel granted to Dell satisfied the AEC analysis between December 2002 and October 2003. According to the Commission, Intel’s calculations were based solely on optimistic assumptions that were favourable to it. The Commission contends that Intel did not provide contemporaneous documents substantiating its claims concerning the contestable share. As regards the events which took place after Dell announced that it would start, from May 2006, to obtain part of its supply from AMD, the Commission argues that those events confirm the findings that the rebates granted by Intel to Dell were capable of having a foreclosure effect on a competitor as efficient as Intel. The Commission also asserts that the purpose of the AEC analysis is not to give predictions of actual market development, but to identify the economic incentives provided by rebate schemes in a theoretical situation.

(1) The assessment of the contestable share

171 The contested decision used a contestable share of 7.1% for the AEC analysis of the rebates which Intel granted to Dell. According to the Commission, that figure comes from a spreadsheet dating from January 2004 (‘the 2004 spreadsheet’) which Dell had provided to it during the administrative procedure. The Commission stated in recitals 1202 to 1208 of the contested decision that the 2004 spreadsheet included, inter alia, a specific analysis of the time profile of a shift in supplies to AMD, whereas previous presentations, including one dated 26 February 2003 entitled ‘AMD Update – Dimension LOB’ and another dated 17 March 2003 entitled ‘AMD Update’, did not contain such a specific analysis and, therefore, were disregarded by the Commission.

172 In recitals 1209 to 1212 of the contested decision, the Commission stated that the 2004 spreadsheet was an internal Dell document speculating how the relationship between Dell and AMD could evolve, with AMD’s penetration increasing in the various business segments for which an assessment was made, that spreadsheet having to be read together with the covering letter of 18 April 2007 sent by Dell to the Commission, to which footnote 1542 to recital 1209 of the contested decision refers.

173 The contested decision highlighted, in recitals 1210 to 1213, that, at the time when the 2004 spreadsheet was drawn up, a switch of x86 CPU supplier was envisaged by Dell for certain segments of manufactured products. According to the contested decision, in view of the estimate of the total volume in each of those segments, it was possible to calculate that AMD’s total share in the four years in question, namely the tax years 2005 to 2008, would be 7.1% in the first year and 17.3%, 22.5% and 24.2% over the following three years. The Commission concludes that it was therefore appropriate to use a contestable share of 7.1% for the purposes of the AEC test analysis.

174 In recitals 1214 to 1254 of the contested decision, the Commission rejected a number of arguments raised by Intel concerning the contestable share, which covered, first, the date which should be used as the starting point for the calculations in the 2004 spreadsheet, second, Dell’s internal presentation entitled ‘MAID status review’ of 17 February 2004 (‘Dell’s 17 February 2004 presentation’), third, Intel’s internal estimates, fourth, Dell’s actual switching of part of its supply needs to AMD in 2006 and, fifth and lastly, the statements by Dell executives in the context of the private litigation between AMD and Intel in the State