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

12 June 2014 ( *1 )

‛Competition — Abuse of dominant position — Microprocessors market — Decision finding an infringement of Article 82 EC and Article 54 of the EEA Agreement — Loyalty rebates — ‘Naked’ restrictions — Classification as abuse — As-efficient-competitor analysis — Commission’s international jurisdiction — Obligation on the Commission to investigate — Limits — Rights of the defence — Principle of sound administration — Overall strategy — Fines — Single and continuous infringement — 2006 Guidelines on the method of setting fines’

In Case T‑286/09,

Intel Corp., established in Wilmington, Delaware (United States), represented initially by K. Bacon, Barrister, M. Hoskins, N. Green QC, S. Singla, Barrister, I. Forrester QC, A. Parr, R. Mackenzie, Solicitors, and D. Piccinin, Barrister, and subsequently by I. Forrester, A. Parr, R. Mackenzie and D. Piccinin,

applicant,

supported by

Association for Competitive Technology, Inc., established in Washington, DC (United States), represented by J.-F. Bellis, lawyer,

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 initially by J. Franck, and subsequently by E. Nasry, lawyers,

intervener,

ACTION for annulment of Commission Decision C(2009) 3726 final of 13 May 2009 relating to a proceeding under Article 82 [EC] and Article 54 of the EEA Agreement (Case COMP/C‑3/37.990 — Intel) or, alternatively, annulment or reduction of the fine imposed on the applicant,

THE GENERAL COURT (Seventh Chamber, Extended Composition),

composed of A. Dittrich (Rapporteur), President, I. Wiszniewska-Białecka, M. Prek, J. Schwarcz and M. Kancheva, Judges,

Registrar: E. Coulon and J. Weychert, Administrator,

having regard to the written procedure and further to the hearing on 3 to 6 July 2012,

gives the following

Judgment ( 1 )

Background to the dispute

1 The applicant, Intel Corp., is a US-based company that 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 about 94100 people worldwide. In 2007, Intel had net revenues of USD 38 334 million and a net income of USD 6 976 million. In 2008, Intel had net revenues of USD 37 586 million and a net income of USD 5 292 million.

I - Administrative procedure

3 On 18 October 2000, Advanced Micro Devices (‘AMD’) submitted a formal complaint to the Commission of the European Communities under Article 3 of Council Regulation (EEC) No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (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 round 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 under 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 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) at four Intel locations, in the United Kingdom, Germany, Italy and Spain, as well as at the locations of several Intel customers, in France, Germany, Italy, Spain and the United Kingdom.

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

6 On 23 August 2006, the Commission held a meeting with Mr D1 [confidential] ( 2 ) of Dell Inc., a customer of Intel. The Commission did not place the indicative list of topics for the meeting (‘the indicative list of topics’) on 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 which was described as internal by the Commission (‘the internal note’) concerning that meeting. 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. Access to the file was granted three times to Intel, namely on 31 July 2007, 23 July 2008 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 of Intel in February 2008. In addition, several written requests for information were addressed, 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 on 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 after 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. However, 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 inter alia from the file of the private litigation between Intel and AMD in the US State of Delaware 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 further 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 Court dismissed the application for interim measures (order of the President of the Court of 27 January 2009 in Case T‑457/08 R Intel v Commission, not published in the ECR). 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 the Commission services had decided not to grant an extension of the deadlines to reply to the Supplementary Statement of Objections of 2008 or to the Letter of Facts. The letter of 2 February 2009 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 took 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 necessitate an oral hearing.

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 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 the 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 82 [EC] 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).

II - Contested decision

20 According to the contested decision, Intel committed a single and continuous infringement of Article 82 EC and 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’).

A — Relevant market

21 The products concerned by the contested decision are CPUs. The CPU is a key component of any computer, both in terms of overall performance and cost of the system. It is often referred to as a computer’s ‘brain’. The manufacturing process of CPUs requires expensive high-tech facilities.

22 CPUs used in computers can be sub-divided into two categories, namely x86 CPUs and CPUs based on another architecture. 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 x86 instruction set. Prior to 2000, there were several manufacturers of x86 CPUs. However, most of these 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 whether there is a single x86 CPU market for all computers or whether it is necessary to draw a distinction between three separate 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 has been defined as worldwide.

B — Dominant position

25 In the contested decision, the Commission finds that, in the 10-year period which was examined (1997-2007), 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. They arise from sunk investments in research and development, intellectual property and the production facilities that are necessary to produce x86 CPUs. In consequence, all 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.

C — 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 awarded four OEMs, namely Dell, Lenovo, HP and NEC, rebates which were conditioned on these OEMs purchasing all or almost all of their x86 CPUs from Intel. Similarly, Intel awarded payments to MSH, which were conditioned 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 these payments is equivalent to that of the conditional rebates to 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 test establishes at what price a competitor as efficient as Intel would have had to offer CPUs in order to compensate an OEM for the loss of an Intel rebate. The same kind of analysis was conducted for the Intel payments to MSH.

31 The evidence gathered by the Commission led it to the conclusion 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 anti-competitive 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 conditioned on these OEMs postponing or cancelling the launch of AMD CPU-based products and/or putting 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 82 EC, but that each of those individual abuses are also part of a single strategy aimed at foreclosing AMD, Intel’s only significant competitor, from the market for x86 CPUs. Those individual abuses are therefore part of a single infringement of Article 82 EC.

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 2006 Guidelines’), the Commission imposed on the applicant a fine of EUR 1.06 billion (as regards the calculation of the fine, see paragraphs 1554 to 1558 below).

D — 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 82 [EC] 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 1 060 000 000 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 and forms of order sought

36 By application lodged at the Court Registry on 22 July 2009, the applicant brought the present action.

37 By document lodged at the Court 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 Court of 5 January 2010, AMD was removed from the case as intervener.

38 By document lodged at the Court 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 Court granted leave. By letter lodged at the Court 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 Court 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 Court granted leave. ACT submitted its statement in intervention within the prescribed period and the main parties submitted their observations on that statement.

40 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly allocated.

41 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 its Rules of Procedure.

42 Upon hearing the Report of the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, put written questions to the parties and requested the applicant and the Commission to produce certain documents. The applicant, the Commission and ACT replied to the written questions and produced the documents requested within the period prescribed.

43 UFC’s reply to a written question put by the Court having been lodged at the Court Registry outside the prescribed period, by decision of 1 June 2012, the President of the Seventh Chamber decided that that reply would nevertheless be placed on the file.

44 By order of 16 April 2012, the Court ordered the Commission, pursuant to Article 65(b), Article 66(1) and the second subparagraph of Article 67(3) of the Rules of Procedure, to produce the confidential version of the internal note concerning the meeting between Commission agents and Mr D1, [confidential] of Dell of 23 August 2006. The Commission complied within the prescribed period. That document was not initially communicated to the applicant or the interveners.

45 Intel and the Commission requested that certain confidential matters contained in their pleadings and annexes, including replies to the written questions of the Court, not be communicated to the interveners. Only the non-confidential versions of those pleadings and annexes produced by the applicant and the Commission were communicated to the interveners. The interveners raised no objections in that regard.

46 On 7 June 2012, the applicant, the Commission and ACT attended, in the presence of the five Members of the Seventh Chamber sitting in extended composition, an informal meeting concerning the confidential treatment of certain information and the organisation of the hearing.

47 By letter registered at the Court Registry on 2 July 2012, the applicant stated that the various OEMs concerned as well as MSH and AMD agreed to information concerning them previously identified as confidential being disclosed during the part of the hearing which would be conducted in public and in the public version of the future judgment, subject to certain exceptions.

48 The parties presented oral argument and their answers to the questions put by the Court at the hearing which took place, partly in camera, from 3 to 6 July 2012.

49 By order of 29 January 2013, the oral procedure was reopened. By way of measures of organisation of procedure, the Commission, which had in turn consulted Dell, having been heard and not having raised any objections, the Court notified to the applicant and the interveners the full version of the internal note concerning the meeting with Mr D1, [confidential] of Dell, and requested that they submit their observations on the parts of that note which had not been sent to them previously. The applicant and ACT complied with that request within the prescribed period. UFC did not submit observations within the prescribed period. The Court then requested the Commission to submit its comments on the applicant’s observations. The Commission complied with that request within the prescribed period. The Court also requested the applicant and the Commission to submit their comments on ACT’s observations. The applicant and the Commission did so within the prescribed period. The oral procedure was then closed on 6 May 2013.

50 The applicant, supported by ACT, claims that the Court should: — annul the contested decision in whole or in part; — in the alternative, annul or substantially reduce the amount of the fine imposed; — order the Commission to pay the costs.

51 The Commission contends that the Court should: — dismiss the action; — order the applicant to pay the costs; — order ACT to pay the costs relating to its intervention.

52 UFC concurs in essence with the form of order sought by the Commission and contends that the applicant should be ordered to pay the costs.

Law

I - Admissibility of certain annexes

53 The Commission claims that certain documents submitted by the applicant as annexes to the application, which consist of testimonies made before the Delaware court before which the United States proceedings were brought (‘the Delaware court’, see paragraph 11 above), are inadmissible under Article 43(5) of the Rules of Procedure, according to which ‘[w]here in view of the length of a document only extracts from it are annexed to the pleading, the whole document or a full copy of it shall be lodged at the Registry’.

54 The Commission states that the applicant has not provided or lodged at the Registry the annexes to the depositions made before the Delaware court. The Commission states moreover that, in respect of some of those testimonies, the applicant provided only extracts from the transcript instead of the full transcript.

55 It is necessary to reject at the outset the Commission’s line of argument in so far as it concerns the testimonies the transcript of which was submitted in its entirety, but without their annexes. According to Article 43(5) of the Rules of Procedure, it is sufficient to lodge the full document at the Registry. That article does not require that all the other documents to which a document annexed to a pleading refers also be lodged at the Registry. In cases where certain parts of the testimonies on which the applicant relies are not comprehensible without access to the documents to which the witnesses refer, that would concern only the probative value of the parts of the testimonies concerned. However, that cannot call in question the admissibility of the testimonies produced by the applicant in annex to its application.

56 As regards the testimonies in respect of which the applicant only produced extracts annexed to its pleadings, the Court makes the following observations.

57 Even if Article 43(5) of the Rules of Procedure were to be interpreted as imposing an obligation on the parties to lodge a full version at the Registry of any document of which they submit extracts annexed to a pleading, any infringement of that obligation could in any event be rectified.

58 In that regard, it should be observed that, according to point 57(d) of the Practice directions to parties adopted by the General Court on 5 July 2007 (OJ 2007 L 232, p. 7), as amended, even a failure to produce annexes mentioned in the schedule is capable of being rectified. The production of only an extract of a document by a party instead of the full document constitutes a fortiori a defect which is capable of being rectified.

59 In the present case, the Court requested the applicant, by way of a measure of organisation of procedure, to produce the full versions of all the testimonies of which the applicant had submitted only extracts and of which it had not lodged a full version at the Registry. The applicant complied with that request within the prescribed period and the Court gave the Commission an opportunity to submit its observations on those documents in writing.

60 The Commission’s argument that some of the documents produced by the applicant are inadmissible under Article 43(5) of the Rules of Procedure must therefore be rejected.

II - The heads of claim for annulment of the contested decision

A — Horizontal questions concerning the legal assessments carried out by the Commission

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

61 The applicant refers to the case-law of the European Union Courts and states, inter alia, that competition cases of the same nature as the present case are of a penal nature, which means that a high standard of proof and the presumption of innocence apply.

62 According to Article 2 of Regulation No 1/2003, in any proceedings for the application of Article 82 EC, the burden of proving an infringement of that article rests on the party or the authority alleging the infringement, namely, in the present case, the Commission. Furthermore, according to well settled 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 (Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II-2501, paragraph 177, and Case T-112/07 Hitachi and Others v Commission [2011] ECR II-3871, paragraph 58).

63 In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed in Rome on 4 November 1950, and from Article 47 of the Charter of Fundamental Rights of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular 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 (Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraphs 149 and 150; and Case C-235/92 P Montecatini v Commission [1999] ECR I-4539, paragraphs 175 and 176; JFE, paragraph 62 above, paragraph 178).

64 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 the institution, viewed as a whole, meets that requirement, as held by the case-law concerning the implementation of Article 81 EC (see, to that effect Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraphs 513 to 523). That principle applies also in cases concerning the implementation of Article 82 EC (Case T-321/05 AstraZeneca v Commission [2010] ECR II-2805 (‘AstraZeneca’), paragraph 477).

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

66 First, where the Commission finds that there has been an infringement of the competition rules on the basis that the established facts cannot be explained other than by the existence of anti-competitive behaviour, the Courts of the European Union 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 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, Joined Cases 29/83 and 30/83 Compagnie royale asturienne des mines and Rheinzink v Commission [1984] ECR 1679, paragraph 16, and Joined Cases C-89/95, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraphs 126 and 127).

67 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 that 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 relied on by it and, on the other, that that circumstance calls in question the probative value of the evidence relied on by the Commission (see, to that effect, Case T-141/08 E.ON Energie v Commission [2010] ECR II-5761, paragraph 56 and the case-law cited).

68 It is in the light of the foregoing considerations that it is necessary to consider whether the Commission proved to the requisite legal standard the circumstances relied on in the contested decision in the light of the applicant’s pleas.

2. The legal characterisation of the rebates and payments in consideration of exclusive supply

69 At recital 924 of the contested decision, the Commission found that the level of the rebates granted to Dell, HP, NEC and Lenovo was de facto conditional upon those companies purchasing all or almost all of their x86 CPU requirements, at least in a certain segment, from Intel and that, consequently, those undertakings’ freedom to choose was restricted. As regards the payments granted to MSH, the Commission found, at the same recital, that those payments were conditional upon MSH selling only PCs based on Intel x86 CPUs and that they thereby restricted MSH’s freedom to choose. The Commission stated, at recital 925 of the contested decision that, in the absence of objective justification, those findings are sufficient to establish an infringement of Article 82 EC.

70 The applicant contests the Commission’s legal characterisation of the payments granted. The applicant maintains in essence that the Commission was required to carry out an assessment of all the surrounding circumstances to see whether the rebates and payments complained of were capable of restricting competition. Before finding that the grant of a rebate is contrary to Article 82 EC, the Commission must prove that those rebates are actually capable of foreclosing competition to the detriment of consumers. Where the conduct is historic, the Commission must prove that the agreements complained of actually led to the foreclosure of competitors.

71 The Commission maintains that the rebates at issue amounted to ‘fidelity rebates within the meaning of Hoffmann-La Roche’ as resulting from Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461 (‘Hoffmann-La Roche’). It contends that, for this type of practice, it is not necessary to establish actual or potential foreclosure effects on a case-by-case basis.

(a) The rebates granted to the OEMs in consideration of exclusive or quasi-exclusive supply

(1) Legal characterisation

72 According to settled case-law, an undertaking which is in a dominant position on a market and ties purchasers — even if it does so at their request — by an obligation or promise on their part to obtain all or most of their requirements exclusively from that undertaking abuses its dominant position within the meaning of Article 82 EC, whether the obligation in question is stipulated without further qualification or whether it is undertaken in consideration of the grant of a rebate (Hoffmann-La Roche, paragraph 71 above, paragraph 89, and Case T-155/06 Tomra Systems and Others v Commission [2010] ECR II-4361 (‘Case T‑155/06 Tomra’), paragraph 208).

73 The same applies where that undertaking, without tying the purchasers by a formal obligation, applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of loyalty rebates, that is to say, discounts conditional on the customer’s obtaining — whether the quantity of its purchases is large or small — all or most of its requirements from the undertaking in a dominant position (Hoffmann-La Roche, paragraph 71 above, paragraph 89, and Case C‑549/10 P Tomra Systems and Others v Commission [2012] ECR (‘Case C‑549/10 P Tomra’), paragraph 70).

74 As regards in particular whether the grant of a rebate by an undertaking in a dominant position can be characterised as abusive, a distinction should be drawn between three categories of rebates (see, to that effect, Case 322/81 Nederlandsche Banden-Industrie-Michelin v Commission [1983] ECR 3461 (‘Michelin I’), paragraphs 71 to 73, and Case C-95/04 P British Airways v Commission [2007] ECR I-2331 (‘Case C‑95/04 P British Airways’), paragraphs 62, 63, 65, 67 and 68).

75 First, quantity rebate systems (‘quantity rebates’) linked solely to the volume of purchases made from an undertaking occupying a dominant position are generally considered not to have the foreclosure effect prohibited by Article 82 EC. If increasing the quantity supplied results in lower costs for the supplier, the latter is entitled to pass on that reduction to the customer in the form of a more favourable tariff. Quantity rebates are therefore deemed to reflect gains in efficiency and economies of scale made by the undertaking in a dominant position (see Case T-203/01 Michelin v Commission [2003] ECR II-4071 (‘Michelin II’), paragraph 58 and the case-law cited).

76 Second, there are rebates the grant of which is conditional on the customer’s obtaining all or most of its requirements from the undertaking in a dominant position. That type of rebate, to which the Commission refers by the expression ‘fidelity rebates within the meaning of Hoffmann-La Roche’, will subsequently be referred to as ‘exclusivity rebates’. It should be noted that that expression will also be used for rebates which are not conditional on exclusive supply but on the customer’s obtaining most of its requirements from the undertaking in a dominant position.

77 Such exclusivity rebates, when applied by an undertaking in a dominant position, are incompatible with the objective of undistorted competition within the common market, because they are not based — save in exceptional circumstances — on an economic transaction which justifies this burden or benefit but are designed to remove or restrict the purchaser’s freedom to choose his sources of supply and to deny other producers access to the market (see, to that effect, Hoffmann-La Roche, paragraph 71 above, paragraph 90, and Case T‑155/06 Tomra, paragraph 72 above, paragraph 209). Such rebates are designed, through the grant of a financial advantage, to prevent customers from obtaining their supplies from competing producers (Hoffmann-La Roche, paragraph 71 above, paragraph 90, and Case T‑155/06 Tomra, paragraph 72 above, paragraph 210).

78 Third, there are other rebate systems where the grant of a financial incentive is not directly linked to a condition of exclusive or quasi-exclusive supply from the undertaking in a dominant position, but where the mechanism for granting the rebate may also have a fidelity-building effect (‘rebates falling within the third category’). That category of rebates includes inter alia rebate systems depending on the attainment of individual sales objectives which do not constitute exclusivity rebates, since those systems do not contain any obligation to obtain all or a given proportion of supplies from the dominant undertaking. In examining whether the application of such a rebate constitutes an abuse of dominant position, it is necessary to consider all the circumstances, particularly the criteria and rules governing the grant of the rebate, and to investigate whether, in providing an advantage not based on any economic service justifying it, that rebate tends to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, or to strengthen the dominant position by distorting competition (see, to that effect, Michelin I, paragraph 74 above, paragraph 73; Case C‑95/04 P British Airways, paragraph 74 above, paragraphs 65 and 67; and Case C‑549/10 P Tomra, paragraph 73 above, paragraph 71).

79 The rebates granted to Dell, HP, NEC and Lenovo to which the Commission referred, in particular in Article 1(a) to (d) of the contested decision, are rebates falling within the second category, namely exclusivity rebates. According to the Commission’s findings set out in the contested decision, those rebates were conditional upon customers’ purchasing from Intel, at least in a certain segment, either all their x86 CPU requirements, in the case of Dell and Lenovo, or most of their requirements, namely 95% in the case of HP and 80% in the case of NEC.

80 The Court would point out that, contrary to the applicant’s claim, the question whether an exclusivity rebate can be categorised as abusive does not depend on an analysis of the circumstances of the case aimed at establishing a potential foreclosure effect.

81 It follows from Hoffmann-La Roche, paragraph 71 above (paragraphs 89 and 90), that that type of rebate constitutes an abuse of a dominant position if there is no objective justification for granting it. The Court of Justice did not require proof of a capacity to restrict competition depending on the circumstances of the case.

82 In addition, it follows from Michelin I, paragraph 74 above, and from Case C‑95/04 P British Airways, paragraph 74 above, that it is necessary to assess all the circumstances of the case only in the case of rebates falling within the third category. In paragraph 71 of Michelin I, paragraph 74 above, the Court of Justice drew attention to the case-law according to which a rebate, which by offering customers financial advantages tends to prevent them from obtaining their supplies from competing manufacturers, amounts to an abuse within the meaning of Article 82 EC. Next, the Court held, in paragraph 72 of that judgment, that the rebate system at issue in that case did not amount to a mere quantity discount or to a system containing an obligation to obtain all or a given proportion of supplies from the undertaking in a dominant position. The Court lastly observed, in paragraph 73 of that judgment, that it is ‘therefore’ necessary to consider all the circumstances, particularly the criteria and rules governing the grant of the rebate.

83 In Case C‑95/04 P British Airways, paragraph 74 above, the Court first of all recalled, in paragraph 62, the case-law resulting from Hoffmann-La Roche, paragraph 70 above, and then noted the difference between the facts forming the basis of the latter judgment and those underlying Michelin I, paragraph 74 above, stating, in paragraph 65, that Michelin I concerned discounts which did not contain any obligation on the part of the customers of the undertaking in a dominant position to obtain all or a given proportion of their supplies from that undertaking. Next, the Court held, in paragraph 67, that it followed from the case-law that it is necessary to consider all the circumstances in order to determine whether an undertaking in a dominant position has abused such a position by applying a system of discounts ‘such as that described in paragraph 65 of this judgment’. Lastly, in paragraph 68, the Court held that the need to determine whether discounts can produce an exclusionary effect concerns a system of discounts or bonuses ‘which constitute neither quantity discounts or bonuses nor fidelity discounts or bonuses within the meaning of the judgment in Hoffmann-La Roche’.

84 It follows that, according to the case-law, it is only in the case of rebates falling within the third category that it is necessary to assess all the circumstances, and not in the case of exclusivity rebates falling within the second category.

85 That approach can be justified by the fact that exclusivity rebates granted by an undertaking in a dominant position are by their very nature capable of restricting competition.

86 The capability of tying customers to the undertaking in a dominant position is inherent in exclusivity rebates. The grant by an undertaking in a dominant position of a rebate in consideration of a customer’s obtaining all or most of its requirements implies that the undertaking in a dominant position grants a financial advantage designed to prevent customers from obtaining their supplies from competing producers. It is therefore not necessary to examine the circumstances of the case in order to determine whether that rebate is designed to prevent customers from obtaining their supplies from competitors.

87 It should moreover be noted that exclusivity rebates granted by an undertaking in a dominant position are by their very nature capable of foreclosing competitors. A financial advantage granted for the purpose of inducing a customer to obtain all or most of its requirements from the undertaking in a dominant position means that that customer has an incentive not to obtain, in respect of the part of its requirements concerned by the exclusivity condition, supplies from competitors of the undertaking in a dominant position.

88 In that context, it should be observed that a foreclosure effect occurs not only where access to the market is made impossible for competitors, but also where that access is made more difficult (see, to that effect, Michelin I, paragraph 74 above, paragraph 85; Case C-52/09 TeliaSonera Sverige [2011] ECR I-527 (‘TeliaSonera’), paragraph 63, and Michelin II, paragraph 75 above, paragraph 244). A financial incentive granted by an undertaking in a dominant position in order to induce a customer not to obtain, in respect of the part of its requirements concerned by the exclusivity condition, supplies from its competitors is by its very nature capable of making access to the market more difficult for those competitors.

89 Although exclusivity conditions may, in principle, have beneficial effects for competition, so that in a normal situation on a competitive market, it is necessary to assess their effects on the market in their specific context (see, to that effect, Case C-234/89 Delimitis [1991] ECR I-935, paragraphs 14 to 27), those considerations cannot be accepted in the case of a market where, precisely because of the dominant position of one of the economic operators, competition is already restricted (see, to that effect, Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865 (‘Case C‑310/93 P BPB Industries and British Gypsum’), paragraph 11, and the Opinion of Advocate General Léger in that case, points 42 to 45).

90 That approach is justified by the special responsibility that an undertaking in a dominant position has not to allow its conduct to impair genuine undistorted competition in the common market and by the fact that, where an economic operator holds a strong position in the market, exclusive supply conditions in respect of a substantial proportion of purchases by a customer constitute an unacceptable obstacle to access to the market (see, to that effect, Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECR II-389 (‘Case T‑65/89 BPB Industries and British Gypsum’), paragraphs 65 to 68). In that case, the exclusivity of supply causes additional interference with the structure of competition on the market. Thus, the concept of abuse in principle includes any obligation to obtain supplies exclusively from an undertaking in a dominant position which benefits that undertaking (see, to that effect, Hoffmann-La Roche, paragraph 71 above, paragraphs 120, 121 and 123, Case C‑310/93 P BPB Industries and British Gypsum, paragraph 89 above, paragraph 11, and the Opinion of Advocate General Léger in that case, paragraph 89 above, points 46 and 47).

91 Furthermore, it must also be stated that it is inherent in a strong dominant position, such as that occupied by the applicant, that, for a substantial part of the demand, there are no proper substitutes for the product supplied by the dominant undertaking. The supplier in a dominant position is thus, to a large extent, an unavoidable trading partner (see, to that effect, Hoffmann-La Roche, paragraph 71 above, paragraph 41; Case C‑95/04 P British Airways, paragraph 74 above, paragraph 75; and Case T‑155/06 Tomra, paragraph 72 above, paragraph 269). In the present case, the applicant does not contest the findings made in the contested decision that its position on the market during the period of the infringement found in this case was that of an unavoidable trading partner.

92 It follows from the position of unavoidable trading partner that customers will in any event obtain part of their requirements from the undertaking in a dominant position (‘the non-contestable share’). The competitor of an undertaking in a dominant position is not therefore in a position to compete for the full supply of a customer, but only for the portion of the demand exceeding the non-contestable share (‘the contestable share’). The contestable share is thus the portion of a customer’s requirements which can realistically be switched to a competitor of the undertaking in a dominant position in any given period, as the Commission states at recital 1009 of the contested decision. The grant of exclusivity rebates by an undertaking in a dominant position makes it more difficult for a competitor to supply its own goods to customers of that dominant undertaking. If a customer of the undertaking in a dominant position obtains supplies from a competitor by failing to comply with the exclusivity or quasi-exclusivity condition, it risks losing not only the rebates for the units that it switched to that competitor, but the entire exclusivity rebate.

93 In order to submit an attractive offer, it is not therefore sufficient for the competitor of an undertaking in a dominant position to offer attractive conditions for the units that that competitor can itself supply to the customer; it must also offer that customer compensation for the loss of the exclusivity rebate. In order to submit an attractive offer, the competitor must therefore apportion the rebate that the undertaking in a dominant position grants in respect of all or almost all of the customer’s requirements, including the non-contestable share, to the contestable share alone. Thus, the grant of an exclusivity rebate by an unavoidable trading partner makes it structurally more difficult for a competitor to submit an offer at an attractive price and thus gain access to the market. The grant of exclusivity rebates enables the undertaking in a dominant position to use its economic power on the non-contestable share of the demand of the customer as leverage to secure also the contestable share, thus making access to the market more difficult for a competitor.

94 Lastly, it should be noted that it is open to the dominant undertaking to justify the use of an exclusivity rebate system, in particular by showing that its conduct is objectively necessary or that the potential foreclosure effect that it brings about may be counterbalanced, outweighed even, by advantages in terms of efficiency that also benefit consumers (see, to that effect, Hoffmann-La Roche, paragraph 71 above, paragraph 90; Case C‑95/04 P British Airways, paragraph 74 above, paragraphs 85 and 86; and Case C‑209/10 Post Danmark [2012] ECR (‘Post Danmark’), paragraphs 40 and 41 and the case-law cited). However, in the case in point, the applicant has put forward no argument in that regard.

(2) The applicant’s arguments

(2.1) The arguments that the Commission is required to carry out an analysis of the circumstances of the case in order to establish at least a potential foreclosure effect

95 The applicant claims that the Commission is required to carry out an analysis of the circumstances of the case in order to establish at least a potential foreclosure effect.

96 First, the applicant relies on paragraph 73 of Michelin I, paragraph 74 above, and on paragraph 67 of Case C‑95/04 P British Airways, paragraph 74 above. However, those paragraphs concern rebates falling within the third category and are therefore not relevant so far as concerns exclusivity rebates.

97 In that regard, it is necessary to reject the applicant’s argument, raised at the hearing, that the Court of Justice abandoned the distinction between exclusivity rebates and rebates falling within the third category in Case C‑549/10 P Tomra, paragraph 73 above. It is true that, in paragraph 70 of that judgment, the Court initially recalled what was stated in paragraph 73 above, namely that the application of a system of loyalty rebates by an undertaking in a dominant position constitutes an abuse, then added, in paragraph 71, that, ‘[i]n that regard, it is necessary to consider all the circumstances …’. However, as the Commission rightly observed, it is apparent from the context of the judgment that, in so doing, the Court did not extend the scope of the analysis of the circumstances of the case to exclusivity rebates. The considerations set out in paragraphs 70 and 71 of that judgment in which the Court recalled the case-law are to be found in the examination of the third plea, which did not concern an exclusivity rebate system, but a rebate system falling within the third category, namely a system of individualised retroactive rebates (Case C‑549/10 P Tomra, paragraph 73 above, paragraphs 73, 74, 77 and 78, and the Opinion of Advocate General Mazák in that case, point 27).

98 Second, the applicant relies on Case C-280/08 P Deutsche Telekom v Commission [2010] ECR I-9555 (‘Case C‑280/08 P Deutsche Telekom’), paragraph 175, TeliaSonera, paragraph 88 above, paragraph 28, and Post Danmark, paragraph 94 above, paragraph 26. In those judgments, the Court of Justice held that, ‘in order to determine whether the undertaking in a dominant position has abused such a position by its pricing practices, it is necessary to consider all the circumstances …’.

99 However, the scope of that case-law is limited to pricing practices and does not affect the legal characterisation of exclusivity rebates. Case C‑280/08 P Deutsche Telekom, paragraph 98 above, and TeliaSonera, paragraph 88 above, concerned margin squeeze practices and Post Danmark, paragraph 94 above, concerned low price practices, so that those three cases concerned pricing practices. However, the present case does not relate to a pricing practice. As regards the rebates granted to the various OEMs, the complaint made against the applicant in the contested decision is not based on the exact amount of the rebates and thus on the prices charged by the applicant, but on the fact that the grant of those rebates was conditional on exclusive or quasi-exclusive supply. Different treatment of exclusivity rebates and pricing practices is justified by the fact that, unlike an exclusive supply incentive, the level of a price cannot be regarded as unlawful in itself.

100 In that regard, it is also necessary to reject the applicant’s argument, put forward at the hearing, that Post Danmark, paragraph 94 above, deals with loyalty rebates comparable to those of the case in point. In that case, the proceedings before the Court of Justice concerned the practice of Post Danmark of charging its main competitor’s former customers rates different from those that it charged its own pre-existing customers without being able to justify those significant differences in its rate and rebate conditions by considerations relating to its costs, a practice described by the Danish Competition Authority as ‘primary-line price discrimination’ (Post Danmark, paragraph 94 above, paragraph 8). That presentation of the anti-competitive practices contains no reference to an exclusivity rebate system. On the contrary, the proceedings which gave rise to the reference for a preliminary ruling concerned solely whether there was an abuse by means of selectively low prices (Post Danmark, paragraph 94 above, paragraphs 15 to 17). Thus, in reply to the question referred to it for a preliminary ruling, the Court only replied to the question in which circumstances a policy of charging low prices had to be considered to amount to an exclusionary abuse, contrary to Article 82 EC (Post Danmark, paragraph 94 above, paragraph 19).

101 The applicant’s arguments must therefore be rejected.

(2.2) The argument that the Commission is required to prove actual foreclosure effects

102 The applicant submits that, where the conduct at issue is historic, the Commission is required to prove actual foreclosure effects. The Commission was wrong not to take into account the absence of actual anti-competitive effects of the applicant’s practices. Moreover, the applicant maintains that the Commission must establish a causal link between the practices complained of and effects on the market.

103 First of all, it must be stated that, even in the context of an analysis of the circumstances of the case, the Commission must only show that a practice is capable of restricting competition (see, to that effect, Case C‑549/10 P Tomra, paragraph 73 above, paragraph 68, and TeliaSonera, paragraph 88 above, paragraph 64). The mechanism of an exclusivity rebate granted by an undertaking in a dominant position which is an unavoidable trading partner enables it to use the non-contestable share of the demand of the customer as leverage to secure also the contestable share (see paragraph 93 above). When such a trading instrument exists, it is unnecessary to undertake an analysis of the actual effects of the rebates on competition (see, to that effect, Case C‑549/10 P Tomra, paragraph 73 above, paragraph 79).

104 Next, given that it is not necessary to prove actual effects of the rebates, it follows necessarily from this that the Commission is also not required to prove a causal link between the practices complained of and actual effects on the market. Thus, the circumstance claimed by the applicant that customers bought exclusively from it for business reasons which were entirely independent of the rebates, assuming that it were proved, does not mean that those rebates were not capable of inducing customers to obtain their supplies exclusively from it.

105 Lastly, the Court would point out that, a fortiori, the Commission is not required to prove either direct damage to consumers or a causal link between such damage and the practices at issue in the contested decision. It is apparent from the case-law that Article 82 EC is aimed not only at practices which may cause damage to consumers directly, but also at those which are detrimental to them through their impact on an effective competition structure (Case C‑95/04 P British Airways, paragraph 74 above, paragraph 106).

(2.3) The argument alleging absence of formal obligations

106 The applicant maintains that the rebates at issue in the present case did not involve formal or binding exclusivity obligations. However, it follows from Hoffmann-La Roche, paragraph 71 above (paragraph 89), that an undertaking in a dominant position abuses that position if it applies an exclusivity rebate system even ‘without tying the purchasers by a formal obligation’. In that regard, the Commission correctly states that the anti-competitive incentive of exclusivity rebates results not from the imposition of a formal obligation to buy exclusively or almost exclusively from the dominant company but from the financial advantages obtained or the financial disadvantages avoided by making such purchases. Thus, it is sufficient that the undertaking in a dominant position indicates in a credible manner to its customer that the grant of a financial advantage depends on exclusive or quasi-exclusive supply.

(2.4) The argument alleging the relevance of the amount of the rebate

107 The applicant states that the Commission failed to take account of the level of the rebates granted by Intel to the OEMs in return for exclusive or quasi-exclusive supply and that it is illogical to censure very small rebates (USD 1 for example) that AMD would have been able to exceed.

108 However, as the Commission correctly observes, it is not the level of the rebates which is at issue in the contested decision but the exclusivity for which they were given. Thus, the rebate must only be capable of inducing the customer to purchase exclusively, irrespective whether the competing supplier could have compensated the customer for the loss of the rebate if that customer switched supplier.

109 It is not therefore necessary to consider the question whether, in the purely theoretical example of a rebate in an amount of USD 1 only as put forward by the applicant, such a minimum rebate is capable of constituting an incentive for the customer to comply with the exclusivity condition. In the case in point, the Commission proved to the requisite legal standard that the applicant had granted rebates to the OEMs amounting to millions of USD annually. The Commission moreover proved to the requisite legal standard that those rebates were granted, at least in part, in consideration of exclusivity (see paragraphs 444 to 584, 673 to 798, 900 to 1017, 1145 to 1208 and 1381 to 1502 below). Those matters suffice to show that the exclusivity rebates at issue in the contested decision were capable of inducing the OEMs to purchase exclusively.

(2.5) The argument based on the relevance of the duration

110 In the applicant’s submission, account must be taken of the short duration of its supply contracts and of the fact that some of those contracts could be terminated at 30 days’ notice.

111 That argument must also be rejected. In that regard, it must be borne in mind that, in principle, any financial incentive to purchase exclusively constitutes additional interference with the structure of competition on a market and must therefore be regarded as abusive to the extent that it is implemented by an undertaking in a dominant position (see paragraph 90 above).

112 As regards the argument based on the possibility of terminating certain contracts at short notice, the Court would point out that the right to terminate a contract in no way prevents its actual application until such time as the right to terminate it has been exercised (Case T‑65/89 BPB Industries and British Gypsum, paragraph 90 above, paragraph 73).

113 Moreover, it should be noted that, in the present case, for all the OEMs and for MSH, the total period during which exclusivity rebates were applied was not short. That period lasted from approximately one year, in the case of Lenovo, to more than five years, in the case of MSH. In that context, it must be stated that the incentive for customers to purchase all or almost all of their requirements from the undertaking in a dominant position continues to exist for as long as the latter grants exclusivity rebates, irrespective of whether a long-term contract has been concluded or whether there is a succession of several short-term contracts (see, also, paragraph 195 below).

(2.6) The argument based on the small part of the market concerned by the conduct complained of

114 The applicant claims that the Commission ought to have taken into consideration the fact that the practices at issue in the contested decision concerned only a small part of the x86 CPU market, namely between 0.3% and 2% per year.

115 It should be observed as a preliminary point that, for the reasons which will be set out in paragraphs 187 to 194 below, such an argument has no factual basis, since the calculation method used by the applicant to reach those figures is erroneous.

116 In addition, the possible smallness of the parts of the market which are concerned by the practices at issue is not a relevant argument. Where the course of conduct under consideration is that of an undertaking occupying a dominant position on a market where for this reason the structure of competition has already been weakened, any further weakening of the structure of competition may constitute an abuse of a dominant position (Hoffmann-La Roche, paragraph 71 above, paragraph 123). The Court of Justice has therefore rejected the application of an ‘appreciable effect’ criterion or a de minimis threshold for the purposes of applying Article 82 EC (Opinion of Advocate General Mazák in Case C‑549/10 P Tomra, paragraph 73 above, point 17).

117 Furthermore, the customers on the foreclosed part of the market should have the opportunity to benefit from whatever degree of competition is possible on the market and competitors should be able to compete on the merits for the entire market and not just for a part of it (Case C‑549/10 P Tomra, paragraph 73 above, paragraphs 42 and 46). A dominant undertaking may not therefore justify the grant of exclusivity rebates to certain customers by the fact that competitors remain free to supply other customers.

118 It follows that the applicant’s line of argument must be rejected.

119 That conclusion is not undermined by the fact that, in Case C‑549/10 P Tomra, paragraph 73 above (paragraphs 41 to 45), the Court of Justice approved the General Court’s reasoning that the part of the market which had been foreclosed in that case was ‘significant’. That reasoning does not confirm the proposition that there can be no foreclosure effect where the foreclosed part of the market is not significant. In that regard, it should be noted that, according to Case T‑155/06 Tomra, paragraph 72 above (paragraph 243), the General Court found that ‘even accepting the applicants’ proposition that foreclosure of a small portion of demand does not matter, that portion was far from being small in the present case’. The General Court did not therefore adopt a position on whether that proposition was correct.

120 It was sufficient for the Court of Justice to approve the finding of the General Court that, in that case, a significant part of the market had been foreclosed, without that being understood as meaning that the Court of Justice took the view that the foreclosure of a significant part of the market was a necessary condition for the finding of an abuse. Moreover, the Court of Justice expressly held, in Case C‑549/10 P Tomra, paragraph 73 above (paragraph 46), that the determination of a precise threshold of foreclosure of the market beyond which the practices at issue had to be regarded as abusive was not required for the purposes of applying Article 82 EC and that, ‘in any event’, it had been proved to the requisite legal standard that the market had been closed to competition by the practices at issue.

121 That conclusion is also not undermined by Case T-65/98 Van den Bergh Foods v Commission [2003] ECR II-4653, paragraph 160, which is relied upon by the applicant and ACT. That judgment did not concern a practice by which a financial incentive was directly conditional on the customer’s obtaining all or most of its requirements from the undertaking in a dominant position. In that case, the undertaking in a dominant position had supplied Irish ice-cream retailers with freezer cabinets free of charge, provided that they be used exclusively to stock ice creams supplied by the undertaking in a dominant position. However, the retailers remained free to sell ice creams supplied by competitors if they stocked them in their own freezer cabinets or in freezer cabinets made available by other ice-cream manufacturers.

122 It was in those circumstances that the Commission took the view that it was an abuse of a dominant position for the undertaking in a dominant position to induce retailers in Ireland not having a freezer cabinet either procured by themselves or provided by another ice-cream manufacturer to enter into freezer-cabinet agreements subject to a condition of exclusivity by offering to supply to them one or more freezer cabinets for the stocking of single-wrapped items of impulse ice-cream, and to maintain the cabinets, free of any direct charge (Van den Bergh Foods v Commission, paragraph 121 above, paragraph 23). The Commission also found, in that case, that in some 40% of all outlets in Ireland the only freezer cabinet/s for the storage of impulse ice-cream in place in the outlet was or were provided by the undertaking in a dominant position (Van den Bergh Foods v Commission, paragraph 121 above, paragraph 19).

123 It was in those circumstances that the General Court held, in Van den Bergh Foods v Commission, paragraph 121 above (paragraph 160), that ‘[t]he fact that an undertaking in a dominant position on a market ties de facto — even at their own request — 40% of outlets in the relevant market by an exclusivity clause which in reality creates outlet exclusivity constitutes an abuse of a dominant position’.

124 It should be observed that, in that case, it was only in respect of those 40% of outlets that the condition that only products supplied by the undertaking in a dominant position could be stocked operated de facto as an exclusivity condition, since the other outlets had at their disposal other freezer cabinets in which they could stock ice creams supplied by other manufacturers. It cannot therefore be inferred from that judgment that, for rebates which are directly linked to an exclusive or quasi-exclusive supply condition, it is necessary to determine the share of the market which is foreclosed.

(2.7) The argument that the alleged exclusivity conditions did not cover a significant portion of certain OEMs’ requirements

125 The applicant states that, as regards certain OEMs, namely HP, NEC and Lenovo, the exclusivity condition found by the Commission in the contested decision did not concern the entire x86 CPU demand of those OEMs, but, in the case of HP, only 95% of its corporate desktop x86 CPU requirements, in the case of NEC, only 80% of its ‘client’ PC x86 CPU requirements, namely desktop computers and notebook computers, with the exception of servers, and, in the case of Lenovo, only its notebook x86 CPU requirements.

126 At the hearing, the applicant added that HP’s x86 CPU corporate desktop requirements amounted to only 30% of HP’s total x86 CPU requirements. Since the alleged condition covered only 95% of HP’s corporate desktop x86 CPU requirements, that condition concerned only approximately 28% of HP’s total x86 CPU requirements and could not therefore be regarded as an exclusivity condition.]

127 By that argument, the applicant claims in essence that the rebates granted to HP, NEC and Lenovo cannot be regarded as exclusivity rebates, since the condition did not concern ‘all or most’, within the meaning of Hoffmann-La Roche, paragraph 71 above (paragraph 89), of those OEMs’ x86 CPU requirements.

128 That line of argument must be rejected.

129 With respect to the rebates granted to HP, it should be noted that the conduct at issue is not linked to the condition that HP was required to purchase at least 28% of its total x86 CPU requirements from Intel, but to the condition that HP was required to purchase, in a certain segment of the market, 95% of its total x86 CPU requirements from Intel. The condition that HP was required to purchase, in a given sector, 95% of its requirements from the undertaking in a dominant position is neither identical to nor comparable to a hypothetical condition according to which HP was required to purchase 28% of its requirements in all segments from Intel.

130 HP’s freedom to obtain its corporate desktop x86 CPU requirements from AMD was liable to be limited on account of the exclusivity rebates granted by Intel. If HP had decided to purchase more than 5% of its corporate desktop x86 CPU requirements from AMD and thus not to comply with the quasi-exclusivity condition, it would have risked losing the exclusivity rebate, and not only in respect of the units purchased from AMD. Thus, in order to be able to supply more than 5% of HP’s corporate desktop x86 CPU requirements, AMD would not only have had to make a more attractive offer for x86 CPUs in respect of the contestable share of HP’s demand, but also compensate HP for the loss of the exclusivity rebate. That is precisely the anti-competitive mechanism of exclusivity rebates.

131 That mechanism was not neutralised by the fact that AMD was able to supply HP with its x86 CPU requirements in respect of all consumer computers and in respect of corporate notebook computers. The fact that HP’s freedom of choice was not limited in those segments of the market does not call in question the fact that HP’s freedom of choice was liable to be limited in the corporate desktop segment.

132 In that context, it should be recalled that competitors of the undertaking in a dominant position must be able to compete on the merits for the entire market and not just for a part of it (Case C‑549/10 P Tomra, paragraph 73 above, paragraph 42). An undertaking in a dominant position may not therefore justify the grant of exclusivity rebates to certain customers by the fact that its competitors are free to supply other customers (see paragraph 117 above). Similarly, an undertaking in a dominant position may not justify the grant of a rebate subject to a quasi-exclusive purchase condition by a customer in a certain segment of a market by the fact that that customer remains free to obtain supplies from competitors in other segments.

133 In that context, it is of no relevance that — as argued by ACT at the hearing — when defining the relevant product market, the Commission did not draw a distinction between CPUs used in corporate computers and consumer computers, as is apparent from recital 831(2) of the contested decision. The anti-competitive mechanism of the exclusivity rebates which were applied in the present case operates irrespective of whether or not the CPUs used in corporate computers and consumer computers are interchangeable. In the present case, the condition was stipulated in relation to HP’s corporate desktop requirements. HP was therefore required to use Intel CPUs in 95% of corporate desktops containing x86 CPUs that it produced. The question whether those CPUs are different from the x86 CPUs used for consumer computers is irrelevant in that context since, even if they were interchangeable, HP would not have been able to use competitors’ CPUs in more than 5% of its corporate desktops without infringing the condition of the exclusivity rebate.

134 It follows that the rebates granted to HP must be regarded as exclusivity rebates, even though the quasi-exclusivity condition concerned only a segment of HP’s requirements.

135 As regards the rebates granted to NEC, it must be observed that the percentage of 80% covered by the exclusivity condition is sufficient to constitute ‘most’ of its requirements within the meaning of Hoffmann-La Roche, paragraph 71 above (paragraph 89). In that context, it should be noted that, in that judgment, the conduct in question included purchasing obligations concerning inter alia 80% or 75% of a customer’s requirements (Hoffmann-La Roche, paragraph 71 above, paragraph 83).

136 The fact that the exclusivity condition concerned only desktop computers and notebook computers, with the exception of servers, is irrelevant. In that regard, the points made in paragraphs 130 to 132 above apply mutatis mutandis.

137 Lastly, with respect to the rebates granted to Lenovo, the fact that the exclusivity condition concerned only notebook computers is irrelevant for the same reasons.

(2.8) The argument based on customers’ buying power

138 The applicant states that customers’ buying power precludes the abuse. In the present case, customers used their buying power as leverage to obtain larger rebates.

139 That argument must be rejected. The claim — even if it were established — that the rebates granted by the applicant represented a response to requests and to customers’ buying power does not justify making them subject to an exclusive supply condition (see, to that effect, Hoffmann-La Roche, paragraph 71 above, paragraph 89; Case T‑65/89 BPB Industries and British Gypsum, paragraph 90 above, paragraph 68; and Case T-66/01 Imperial Chemical Industries v Commission [2010] ECR II-2631, paragraph 305). As the Court of Justice held in Hoffmann-La Roche, paragraph 71 above (paragraph 120), the fact that the dominant undertaking’s contracting partner is itself a powerful undertaking and that the contract is clearly not the outcome of pressure brought to bear by the dominant undertaking on its partner does not preclude the existence of an abuse of a dominant position, since such an abuse consists in the additional interference, due to the obligation to obtain supplies exclusively, with the structure of competition in a market in which in consequence of the presence there of an undertaking occupying a dominant position the degree of competition has already been weakened. Moreover, the OEMs’ buying power does not alter the fact that they depended on the applicant as an unavoidable trading partner in the x86 CPU market.

(2.9) The line of argument concerning the relevance of the AEC test

140 The applicant submits that the AEC test (see paragraph 30 above) is an important factor when establishing the potential foreclosure effect of the rebates at issue. The AEC test is the only evidence that the Commission presented in the contested decision to show that Intel’s rebates were capable of causing anti-competitive foreclosure. However, the Commission disputes that the AEC test forms part of the legal analysis of the contested decision. It follows, in the applicant’s submission, that the legal assessment carried out by the Commission in the contested decision failed to establish the foreclosure capability of the rebates at issue. Moreover, in the applicant’s submission, the Commission made numerous errors in applying that test. In its submission, proper application of the AEC test demonstrates that the rebates granted by Intel did not have a foreclosure capability.

141 It should be observed as a preliminary point that the AEC test carried out in the contested decision takes as a starting point the circumstance, noted in paragraph 93 above, that an as-efficient competitor, which seeks to obtain the contestable share of the orders hitherto satisfied by a dominant undertaking which is an unavoidable trading partner, must compensate the customer for the exclusivity rebate that 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.

142 As regards the relevance of the AEC test with respect to exclusivity rebates, the Court makes the following observations.

143 First of all, it should be recalled that a finding that an exclusivity rebate is illegal does not necessitate an examination of the circumstances of the case (see paragraphs 80 to 93 above). The Commission is not therefore required to demonstrate the foreclosure capability of exclusivity rebates on a case-by-case basis.

144 Next, it follows from the case-law that, even in the case of rebates falling within the third category, for which an examination of the circumstances of the case is necessary, it is not essential to carry out an AEC test. Thus, in Michelin I, paragraph 74 above (paragraphs 81 to 86), the Court of Justice relied on the loyalty mechanism of the rebates at issue, without requiring proof, by means of a quantitative test, that competitors had been forced to sell at a loss in order to be able to compensate the rebates falling within the third category granted by the undertaking in a dominant position.

145 Moreover, it follows from Case C‑549/10 P Tomra, paragraph 73 above (paragraphs 73 and 74), that, in order to find anti-competitive effects, it is not necessary that a rebate system force an as-efficient competitor to charge ‘negative’ prices, that is to say prices lower than the cost price. In order to establish a potential anti-competitive effect, it is sufficient to demonstrate the existence of a loyalty mechanism (see, to that effect, Case C‑549/10 P Tomra, paragraph 73 above, paragraph 79).

146 It follows that, even if an assessment of the circumstances of the case were necessary to demonstrate the potential anti-competitive effects of the exclusivity rebates, it would still not be necessary to demonstrate those effects by means of an AEC test.

147 Moreover, the applicant’s argument that the AEC test is the only evidence that the Commission presented in the contested decision in order to demonstrate the foreclosure capability of the rebates at issue has no factual basis (see paragraphs 173 to 175 below).

148 With respect to the applicant’s argument that it would have demonstrated by means of an AEC test carried out properly that the rebates at issue did not have a foreclosure capability, the Court makes the following observations.

149 First of all, it should be borne in mind that a foreclosure effect occurs not only where access to the market is made impossible for competitors. Indeed, it is sufficient that that access be made more difficult (see paragraph 88 above).

150 However, it must be stated that an AEC test only makes it possible to verify the hypothesis that access to the market has been made impossible and not to rule out the possibility that it has been made more difficult. It is true that a negative result means that it is economically impossible for an as-efficient competitor to secure the contestable share of a customer’s demand. In order to offer a customer compensation for the loss of the exclusivity rebate, that competitor would be forced to sell its products at a price which would not allow it even to cover its costs. However, a positive result means only that an as-efficient competitor is able to cover its costs (in the case of the AEC test as carried out in the contested decision and proposed by the applicant, only the average avoidable costs). That does not however mean that there is no foreclosure effect. The mechanism of the exclusivity rebates, as described in paragraph 93 above, is still capable of making access to the market more difficult for competitors of the undertaking in a dominant position, even if that access is not economically impossible (see, as regards that distinction, point 54 of the Opinion of Advocate General Mazák in Case C‑549/10 P Tomra, paragraph 73 above).

151 It follows from the foregoing that it is not necessary to consider whether the Commission carried out the AEC test in accordance with the applicable rules and that it is also not necessary to examine the question whether the alternative calculations proposed by the applicant were carried out correctly. Even a positive AEC test result would not be capable of ruling out the potential foreclosure effect which is inherent in the mechanism described in paragraph 93 above.

152 That conclusion is not undermined by TeliaSonera, paragraph 88 above, Case C‑280/08 P Deutsche Telekom, paragraph 98 above, and Post Danmark, paragraph 94 above. The applicant submits that it follows from those judgments that the key criterion is whether a competitor as efficient as the dominant undertaking could continue to compete with the dominant undertaking. However, it should be borne in mind that those cases concerned margin squeeze practices (TeliaSonera and Deutsche Telekom) or low price practices (Post Danmark). The obligation resulting from those judgments to carry out price and cost analyses is attributable to the fact that it is impossible to assess whether a price is abusive without comparing it with other prices and costs. A price cannot be unlawful in itself. However, in the case of an exclusivity rebate, it is the condition of exclusive or quasi-exclusive supply to which its grant is subject rather than the amount of the rebate which makes it abusive.

153 Moreover, it follows from Case C‑549/10 P Tomra, paragraph 73 above (paragraphs 73, 74 and 80), which postdates the judgments cited in the previous paragraph, that it is not essential to examine whether a rebate system forces an as-efficient competitor to charge negative prices, even in the case of rebates falling within the third category. A fortiori, it is not necessary to do so as regards exclusivity rebates.

154 The conclusion is also not undermined by the Communication from the Commission entitled ‘Guidance on the Commission’s enforcement priorities in applying Article 82 [EC] to abusive exclusionary conduct by dominant undertakings (OJ 2009 C 45 p. 7; ‘the Article 82 Guidance’).

155 According to paragraph 2 of the Article 82 Guidance, ‘[t]his document sets out the enforcement priorities that will guide the Commission’s action in applying Article 82 [EC]’. As the Commission observed at recital 916 of the contested decision, since the Article 82 Guidance is intended to set priorities for the cases that the Commission will focus upon in the future, it does not apply to proceedings that had already been initiated before it was published. Since the Commission decision to initiate proceedings is dated 26 July 2007, the Commission was not therefore in any event required to follow the Article 82 Guidance in the present case.

156 The fact that the Article 82 Guidance was published before the adoption of the contested decision does not mean that it was applicable. The fact that the Commission provides indications on the enforcement priorities that will guide its action in the future cannot oblige it to reconsider whether it deal with a case as a priority that it had already decided to deal with as a priority and the treatment of which, moreover, is at an advanced stage.

157 It is not therefore necessary to consider whether the contested decision is in line with the Article 82 Guidance.

158 The mere fact that the Commission stated, at recital 916 of the contested decision, that it none the less considered that that decision was in line with the Article 82 Guidance is not capable of calling in question the lack of relevance of the Article 82 Guidance for this case. It is clearly a point that the Commission raised for the sake of completeness, having explained that the Article 82 Guidance was not applicable in the present case.

159 With respect to the circumstance, relied on by the applicant, that the Member of the Commission responsible for competition at the time stated, in a speech of 17 July 2009, that, in the Intel case, the Commission had applied the AEC test in accordance with the methodology set out in the Article 82 Guidance, it should be pointed out that it is clearly apparent from the contested decision, which was adopted by the College of Commissioners, that the Commission considered that the Article 82 Guidance was not applicable and that the AEC test did not constitute a necessary element to show that the practices at issue were illegal. It was therefore for the sake of completeness that the Commission carried out an AEC test and found that the contested decision was in line with the Article 82 Guidance. The fact that the Member of the Commission responsible for competition gave a speech after the adoption of the contested decision, in which that member stated that the Commission had carried out an AEC test in the Intel case, without specifying in that regard that that test had been carried out for the sake of completeness, is not such as to alter the interpretation to be given to the contested decision.

160 In reply to a question put at the hearing, the applicant stated that its reasoning relating to the relevance of the AEC test, which it claims played an important role during the administrative procedure, had to be understood as meaning that it was also relying on the principle of the protection of legitimate expectations.

161 In that regard, it must be recalled that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations, which is one of the fundamental principles of the European Union, extends to any individual in a situation in which it is clear that the European Union authorities, by giving him precise assurances, have caused him to entertain legitimate expectations. Such assurances, in whatever form they are given, are precise, unconditional and consistent information from authorised and reliable sources. However, a person may not plead breach of the principle unless he has been given precise assurances by the authorities (see Case T-273/01 Innova Privat-Akademie v Commission [2003] ECR II-1093, paragraph 26 and the case-law cited).

162 In the present case, the applicant did not show the existence of a precise assurance given during the administrative procedure that the AEC test was essential for the Commission in order to establish an infringement of Article 82 EC. On the contrary, as the Commission rightly noted at the hearing, according to the second paragraph of Section II 1 of the Final report of the Hearing Officer in this case (OJ 2009 C 227, p. 7), ‘during the Hearing the Commission made it clear to Intel, and Intel understood, that the economic assessment was not a condition for a finding of abuse’.

163 The applicant then made it clear, at the hearing, that it had fully understood the Hearing Officer’s comments. The applicant claimed that it follows however from point 340 of the Statement of Objections of 2007 that, in the event that proof of a foreclosure capability were necessary, the Commission relies solely on the AEC test in order to prove that capability.

164 It must however be observed that the mere fact that the Commission stated, in point 340 of the Statement of Objections of 2007, that it would establish that the rebates in question had a foreclosure effect, since they prevented an as-efficient competitor from being able to compensate the OEM for the loss in potential rebate, cannot be regarded as a precise assurance that the Commission would not rely on any other ground in order to establish the foreclosure capability. Moreover, it is apparent from points 260 and 329 of the Supplementary Statement of Objections of 2008 that, in its analysis, the Commission did not rely exclusively on the AEC test, but also on other qualitative and quantitative evidence.

165 The Commission did not therefore infringe the principle of the protection of legitimate expectations by the approach that it followed in the contested decision.

166 It follows from the foregoing that the arguments put forward by the applicant are not capable of undermining the conclusion that it is not necessary to consider whether the Commission carried out the AEC test in accordance with the applicable rules or to examine in detail the applicant’s arguments regarding the errors that the Commission allegedly made when carrying out that test, or the conclusion that it is also not necessary to examine the alternative calculations proposed by the applicant (see paragraph 151 above).

(b) The payments granted to MSH

167 The Commission finds in essence, at recital 1000 of the contested decision, that the effect of the payments granted to MSH on condition that it sell exclusively the applicant’s products was equivalent to that of an exclusivity rebate and that those payments therefore fulfilled the conditions laid down by the case-law for qualification as abusive.

168 At the hearing, the applicant claimed in essence that the Commission had wrongly applied the same test for the legal characterisation of the exclusivity rebates granted to the OEMs and for the characterisation of the payments granted to MSH. The applicant submitted inter alia that, unlike the OEMs, MSH was an operator that was present on the retail market. For the purposes of examining whether a competing producer is denied access to the retail market, the applicant claims that the case-law requires an analysis of the cumulative effects produced by a network of exclusive relationships. However, during the period at issue, MSH allegedly held only a very small portion of the relevant worldwide market, namely approximately 1%.

169 It must be stated that the applicant’s argument amounts to an assertion that the Commission ought to have carried out an analysis of the circumstances of the case in the retail market in order to demonstrate that the applicant’s practices vis-à-vis MSH were capable of restricting competition. However, that argument cannot be accepted. As the Commission rightly observed at the hearing, the anti-competitive mechanism of the applicant’s practices vis-à-vis the OEMs and vis-à-vis MSH was the same, the only difference being that the exclusivity payment granted to MSH was not designed to prevent the supply of a direct customer of the applicant by a competitor, but rather the sale of competing products by a retailer further down the supply chain. OEMs incorporate CPUs in computers that are then sold to consumers by retailers such as MSH. By inducing a retailer to sell computers equipped exclusively with Intel CPUs, the applicant therefore deprived OEMs of a distribution channel for computers equipped with competing undertakings’ CPUs. Thus, by depriving MSH of its freedom of choice as regards its sales, it restricted the OEMs’ freedom of choice as regards their distribution channels. Given that that restriction was capable of having repercussions for OEMs’ demand for AMD CPUs, inducing MSH into an exclusive sale tended to make it more difficult for AMD to gain access to the x86 CPU market. In both situations, the applicant used its economic power on the non-contestable share of the demand as leverage to secure also the contestable share of the demand, thus making access to the market more difficult for AMD (see paragraph 93 above).

170 Whilst it is true that, in the context of Article 81 EC, the Court of Justice has held that, in a normal situation on a competitive market, it is necessary to assess the exclusive relationships between a supplier and a retailer in their specific context, which has implied in particular an analysis of the cumulative effect of a network of such relationships, it is however clear that those considerations cannot be accepted in the context of the implementation of Article 82 EC, which relates to markets in which, precisely because of the dominant position of one of the economic operators, competition is already restricted (see paragraph 89 above).

171 Accordingly, also as regards the payments granted to MSH, the Commission was not required to examine the circumstances of the case, but was required only to demonstrate that the applicant had granted a financial incentive which was subject to an exclusivity condition.

(c) Analysis of the capability of the rebates to restrict competition according to the circumstances of the case

172 For the sake of completeness, as regards whether, in the contested decision, the Commission established the capability of the exclusivity rebates and payments granted to Dell, HP, NEC, Lenovo and MSH to restrict competition also following an analysis of the circumstances of the case, the Court makes the following observations.

173 As a preliminary point, it must be observed that, at recital 924 of the contested decision, the Commission considered that the exclusivity rebates and payments granted to Dell, HP, NEC, Lenovo and MSH were part of a long-term strategy aimed at foreclosing competitors from the market. At recital 925 of the contested decision, the Commission stated that it had demonstrated, in sections VII.4.2.3 to VII.4.2.6 of that decision, that, on top of fulfilling the conditions set out in the case-law, Intel’s practices were capable of producing or likely to produce a foreclosure effect. Although not indispensable for establishing an infringement of Article 82 EC, one possible way of showing that Intel’s practices were capable of causing or likely to cause foreclosure of competitors is to conduct an as-efficient competitor analysis (see section VII.4.2.3 of the contested decision). On the basis of the results of this analysis and the qualitative and quantitative evidence (see sections VII.4.2.4 and VII.4.2.5 of the contested decision), and given the lack of objective justification and lack of efficiencies (see section VII.4.2.6 of the contested decision), the Commission concluded, at recital 925 of the contested decision, that Intel’s conditional rebates to Dell, HP, NEC and Lenovo, as well as Intel’s payments to MSH, were an abuse which deserved its particular attention.

174 Moreover, it must be observed that other parts of the contested decision, in particular those concerning the presentation of the products concerned and the conduct at issue in that decision, in sections V and VI of that decision, those concerning the definition of the market, in sections VII.1 and VII.2 of that decision, and the applicant’s dominant position, in section VII.3 of that decision, together with the parts concerning the legal characterisation of the exclusivity payments, in section VII.4.2.2 of that decision, must be regarded as the basis of the Commission’s conclusion that the payments at issue were capable of restricting competition.

175 Contrary to the applicant’s submission, the AEC test is therefore not the only evidence presented in the contested decision in order to demonstrate that the exclusivity payments were capable of restricting competition (see paragraph 147 above).

176 As regards the assessment of the capability of the exclusivity rebates and payments at issue in the present case to restrict competition, it should be noted that, in the context of an analysis of the circumstances of the case, the Commission must examine, particularly in the light of the criteria and rules governing the grant of the exclusivity payments, whether, in providing an advantage not based on any economic service justifying it, those rebates and payments tend to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, or to strengthen the dominant position by distorting competition (see, to that effect, Case C‑549/10 P Tomra, paragraph 73 above, paragraph 71).

177 It should be made clear that, even in the context of an analysis of the circumstances of the case, the Commission is not required to demonstrate the existence of an actual effect. The Commission may confine itself to establishing that the conduct complained of was capable of restricting competition (see paragraph 103 above).

178 In that regard, it should be observed that, even if the view were to be taken that the grant of an exclusivity rebate or payment by an undertaking in a dominant position is not, in itself, capable of restricting competition, the fact remains that the grant of such a financial incentive by an unavoidable trading partner, such as the applicant, provides at least an indication that it is capable of restricting competition. Where it is granted by an unavoidable trading partner, an exclusivity rebate enables the latter to use its economic power on the non-contestable portion of the demand as leverage to secure also the contestable share, thus making access to the market more difficult for the competitor (see paragraphs 91 and 92 above).

179 That inherent capability of exclusivity rebates and payments to make access to the market more difficult for a competitor is, in the case in point, confirmed by the findings made at recital 893 of the contested decision according to which the rebates were an important element for OEMs to consider on account of the strong competition on the OEM market and their low operat