Advocate General Wahl concludes that the Court of Justice of the EU should uphold Intel’s appeal against the EUR 1.06 billion fine for abuse of dominance and refer the case back to the General Court (Advocate General’s Opinion of 20 October 2016 in Case C-413/14 P Intel Corporation Inc. v Commission)
Advocate General (AG) Wahl has rendered its conclusions on Intel´s appeal against the General Court´s judgment of 12th June 2014 in Case T-286/09, where Intel´s action against the EUR 1.06 billion fine for abuse of dominance was dismissed. In its conclusions, AG Wahl has upheld five out of the six arguments brought by Intel and has recommended that the case is referred back to the General Court.
Firstly, Intel argued that the General Court erred in law in the legal characterization of rebates as exclusivity rebates. In this regard, AG Wahl found that by concluding that exclusivity rebates constitute a separate and unique category of rebates that require no consideration of all the circumstances in order to establish an abuse of dominance, the General Court erred in law.
Secondly, Intel alleged that the General Court erred in law both by finding an infringement in 2006 and 2007; and, by assessing the relevance of market coverage. In AG Wahl’s opinion, by doing so, the General Court did not follow the criterion of “sufficient market coverage” and, as a consequence, failed to ascertain that the behavior in question was capable of restricting competition in 2006 and 2007.
Thirdly, Intel contested the fact that certain rebate arrangements that covered a minority of a customer’s purchases were classified as exclusivity rebates by the General Court. In relation to this, according to AG Wahl, no separate category of exclusivity rebates exists. In case the Court thinks otherwise, AG Wahl recommends upholding this ground given that exclusivity rebates would be conditional upon the customer purchasing all or most of its products from the dominant undertaking, which is not satisfied in this case. Fourthly, Intel claimed that the General Court’s interpretation of EU law with regard to the absence of an obligation to record an interview between the Commission and an executive of Dell constituted an error of law. In this respect, AG Wahl found that the General Court erred in law by concluding that the Commission did not breach EU law by not organizing and recording a meeting as required under the applicable rules.
Fifthly, the claimant challenged the Commission’s jurisdiction regarding Intel’s arrangements in China with Lenovo. In line with Intel’s argument, AG Wahl questioned the consideration that Intel’s abuse could be deemed to have been implemented in the EEA. Consequently, in AG Wahl’s view, the General Court failed to assess whether the anticompetitive effects of certain agreements between Intel and Lenovo had the capability to produce any immediate, substantial and foreseeable anticompetitive effect in the EEA.
Finally, the last argument brought by Intel concerned (i) the amount of the fine; and, (ii) the retroactive application of the 2006 Guidelines on the setting of fines. Regarding the amount of the fine, AG Wahl found that the fact that the fine imposed was the highest one ever imposed at the time did not amount to disproportionality. As for the retroactivity of the 2006 Guidelines, AG Wahl explained that it is not the fining guidelines but the EU legislation which defines the limits of the European Commission’s discretion in imposing a fine for a breach of EU Competition law. Therefore, as long as the fine imposed complies with the limits of that legislation, the principle of non-retroactivity cannot be invoked to contest the fine.
