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of appeal, alleging several errors of law and infringement of the Commission’s rights of defence in the examination of the AEC test in relation to HP","paragraph_id":"para_31"},{"text":"The first part, alleging errors of law in the examination of the AEC test in relation to HP","paragraph_id":"para_32"},{"text":"– Arguments of the parties","paragraph_id":"para_33"},{"text":"– Findings of the Court","paragraph_id":"para_34"},{"text":"The second part, alleging infringement of the Commission’s rights of defence in the examination of the AEC test in relation to HP","paragraph_id":"para_35"},{"text":"– Arguments of the parties","paragraph_id":"para_36"},{"text":"– Findings of the Court","paragraph_id":"para_37"},{"text":"The fifth ground of appeal, alleging misinterpretation of the AEC test and of Article 102 TFEU, distortion of the evidence and infringement of the Commission’s rights of defence in the examination of the AEC test in relation to Lenovo","paragraph_id":"para_38"},{"text":"Arguments of the parties","paragraph_id":"para_39"},{"text":"Findings of the Court","paragraph_id":"para_40"},{"text":"The sixth ground of appeal, alleging an incorrect assessment of the consequences to be drawn from the errors found in the AEC test","paragraph_id":"para_41"},{"text":"Arguments of the parties","paragraph_id":"para_42"},{"text":"Findings of the Court","paragraph_id":"para_43"},{"text":"Costs","paragraph_id":"para_44"},{"text":"(Appeal – Competition – Abuse of dominant position – Microprocessors market – Decision finding an infringement of Article 102 TFEU and Article 54 of the EEA Agreement – Loyalty rebates – Characterisation as abuse – Strategy aiming to exclude competitors that are at least as efficient as the dominant undertaking from the market)","paragraph_id":"para_45"},{"text":"In Case C‑240/22 P,","paragraph_id":"para_46"},{"text":"APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 5 April 2022,","paragraph_id":"para_47"},{"text":"European Commission , represented initially by F. Castillo de la Torre, M. Kellerbauer, N. Khan and C. Sjödin, subsequently by F. Castillo de la Torre, M. Kellerbauer and N. Khan, and lastly by F. Castillo de la Torre and M. Kellerbauer, acting as Agents,","paragraph_id":"para_48"},{"text":"appellant,","paragraph_id":"para_49"},{"text":"supported by:","paragraph_id":"para_50"},{"text":"Federal Republic of Germany , represented by J. Möller and P.-L. Krüger, acting as Agents,","paragraph_id":"para_51"},{"text":"intervener in the appeal,","paragraph_id":"para_52"},{"text":"the other parties to the proceedings being:","paragraph_id":"para_53"},{"text":"Intel Corporation Inc ., established in Wilmington, Delaware (United States), represented initially by D. Beard KC, J. Williams, Barrister, and A. Parr, Solicitor, and subsequently by D. Beard KC, J. Williams, Barrister, and B. Meyring, Rechtsanwalt,","paragraph_id":"para_54"},{"text":"applicant at first instance,","paragraph_id":"para_55"},{"text":"Association for Competitive Technology Inc ., established in Washington, DC (United States), represented by J.-F. Bellis, avocat, and K. Van Hove, advocaat,","paragraph_id":"para_56"},{"text":"Union fédérale des consommateurs – Que choisir (UFC – Que choisir),","paragraph_id":"para_57"},{"text":"interveners at first instance,","paragraph_id":"para_58"},{"text":"THE COURT (Fifth Chamber),","paragraph_id":"para_59"},{"text":"composed of I. Jarukaitis, President of the Fourth Chamber, acting as President of the Fifth Chamber, D. Gratsias (Rapporteur), and E. Regan, Judges,","paragraph_id":"para_60"},{"text":"Advocate General: L. Medina,","paragraph_id":"para_61"},{"text":"Registrar: A. Calot Escobar,","paragraph_id":"para_62"},{"text":"having regard to the written procedure,","paragraph_id":"para_63"},{"text":"after hearing the Opinion of the Advocate General at the sitting on 18 January 2024,","paragraph_id":"para_64"},{"text":"gives the following","paragraph_id":"para_65"},{"text":"Judgment","paragraph_id":"para_66"},{"text":"1","paragraph_id":"para_67"},{"text":"By its appeal, the European Commission asks the Court of Justice to set aside the judgment of the General Court of the European Union of 26 January 2022, Intel Corporation v Commission ( T‑286/09 RENV , the judgment under appeal, EU:T:2022:19 ), in so far as it annulled, first, Article 1(a) to (e) a …","paragraph_id":"para_68"},{"text":"Background to the dispute and the decision at issue","paragraph_id":"para_69"},{"text":"2","paragraph_id":"para_70"},{"text":"The background to the dispute and the content of the decision at issue are described in paragraphs 1 to 35 of the judgment under appeal. For the purposes of the present proceedings, they may be summarised as follows.","paragraph_id":"para_71"},{"text":"3","paragraph_id":"para_72"},{"text":"Intel Corporation Inc. (‘Intel’) is a company established under United States law which designs, develops, manufactures and markets central processing units (‘CPUs’), chipsets and other semiconductor components, as well as platform solutions for data processing and communications devices.","paragraph_id":"para_73"},{"text":"4","paragraph_id":"para_74"},{"text":"Following a complaint lodged by Advanced Micro Devices Inc. (‘AMD’) on 18 October 2000 and supplemented on 26 November 2003, the Commission launched an investigation into Intel on the basis of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] ( OJ 2003 L 1, p. 1 ).","paragraph_id":"para_75"},{"text":"5","paragraph_id":"para_76"},{"text":"On 26 July 2007, the Commission notified to Intel a statement of objections 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).","paragraph_id":"para_77"},{"text":"6","paragraph_id":"para_78"},{"text":"On 17 July 2008, the Commission issued to Intel a supplementary statement of objections concerning its conduct vis-à-vis Media-Saturn-Holding GmbH (‘MSH’), a European retailer of microelectronic devices and the largest desktop computer distributor in Europe. That statement of objections also covered …","paragraph_id":"para_79"},{"text":"7","paragraph_id":"para_80"},{"text":"On 13 May 2009, the Commission adopted the decision at issue, a summary of which appears in the Official Journal of the European Union ( OJ 2009 C 227, p. 13 ).","paragraph_id":"para_81"},{"text":"8","paragraph_id":"para_82"},{"text":"According to the decision at issue, Intel committed a single and continuous infringement of Article 102 TFEU and of Article 54 of the Agreement on the European Economic Area (EEA) of 2 May 1992 ( OJ 1994 L 1, p. 3 ), 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’).","paragraph_id":"para_83"},{"text":"9","paragraph_id":"para_84"},{"text":"The goods at issue in the decision at issue are CPUs, which are key components of any computer, both in terms of the overall performance and cost of the system. They are often referred to as the computer’s ‘brain’. The process for the manufacture of CPUs thus requires expensive high-tech facilities.","paragraph_id":"para_85"},{"text":"10","paragraph_id":"para_86"},{"text":"CPUs used in computers can be subdivided into two categories, namely x86 CPUs and CPUs based on another architecture. The x86 architecture is a standard designed by Intel for its CPUs. It can run both the Windows and Linux operating systems. Windows is primarily linked to the instruction set corresp …","paragraph_id":"para_87"},{"text":"11","paragraph_id":"para_88"},{"text":"The geographical market was defined as worldwide.","paragraph_id":"para_89"},{"text":"12","paragraph_id":"para_90"},{"text":"On the basis, first, of a market share in excess of 70% held by Intel between 1997 and 2007 and, second, of the existence of significant barriers to entry to that market and to expansion resulting from sunk investments in research and development, intellectual property and the necessary production facilities to manufacture x86 CPUs, the Commission concluded that Intel had held a dominant position on that market at least in the period from October 2002 to December 2007.","paragraph_id":"para_91"},{"text":"13","paragraph_id":"para_92"},{"text":"The Commission imputed two types of abusive conduct to Intel. Those are, first, rebates granted to four OEMs – namely Dell, Lenovo, HP and NEC – on condition that those OEMs purchase all or almost all of their x86 CPUs from Intel and payments awarded to MSH, on condition that MSH sold exclusively co …","paragraph_id":"para_93"},{"text":"14","paragraph_id":"para_94"},{"text":"In the decision at issue, the Commission carried out an economic analysis concerning the capability of the contested rebates to foreclose a competitor as efficient as Intel, albeit not dominant (as efficient competitor test; ‘the AEC test’). That analysis makes it possible to establish at what price …","paragraph_id":"para_95"},{"text":"15","paragraph_id":"para_96"},{"text":"The evidence gathered by the Commission led it to conclude that the contested rebates induced the loyalty of the ‘key’ OEMs and of MSH. The effects of those rebates were complementary, in that they significantly diminished the ability of Intel’s competitors to compete on the merits of their x86 CPUs. Intel’s anticompetitive conduct thereby resulted in a reduction of consumer choice and in lower incentives to innovate.","paragraph_id":"para_97"},{"text":"16","paragraph_id":"para_98"},{"text":"Second, the Commission imputed to Intel practices constituting naked restrictions consisting of awarding payments to three OEMs, namely HP, Acer and Lenovo, so that they postponed or cancelled the launch of AMD x86 CPU-based products or placed restrictions on the distribution of those products. The Commission concluded that those practices, which did not constitute normal competition on the merits, also directly harmed competition.","paragraph_id":"para_99"},{"text":"17","paragraph_id":"para_100"},{"text":"The Commission concluded in the decision at issue that, in each instance, the conduct imputed to Intel vis-à-vis the OEMs set out above and MSH constituted an abuse under Article 102 TFEU, but that each of those individual abuses was also part of a single strategy aimed at foreclosing AMD, Intel’s only significant competitor, from the market for x86 CPUs. Those individual abuses, it found, were therefore part of a single infringement of Article 102 TFEU.","paragraph_id":"para_101"},{"text":"18","paragraph_id":"para_102"},{"text":"By applying the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 ( OJ 2006 C 210, p. 2 ), the Commission imposed on Intel a fine of EUR 1.06 billion.","paragraph_id":"para_103"},{"text":"19","paragraph_id":"para_104"},{"text":"The operative part of the decision at issue, reproduced in paragraph 35 of the judgment under appeal, reads as follows:","paragraph_id":"para_105"},{"text":"‘Article 1","paragraph_id":"para_106"},{"text":"Intel … has committed a single and continuous infringement of Article [102 TFEU] and Article 54 of the EEA Agreement from October 2002 until December 2007 by implementing a strategy aimed at foreclosing competitors from the market of x86 CPUs which consisted of the following elements:","paragraph_id":"para_107"},{"text":"(a)","paragraph_id":"para_108"},{"text":"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;","paragraph_id":"para_109"},{"text":"(b)","paragraph_id":"para_110"},{"text":"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;","paragraph_id":"para_111"},{"text":"(c)","paragraph_id":"para_112"},{"text":"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;","paragraph_id":"para_113"},{"text":"(d)","paragraph_id":"para_114"},{"text":"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;","paragraph_id":"para_115"},{"text":"(e)","paragraph_id":"para_116"},{"text":"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;","paragraph_id":"para_117"},{"text":"(f)","paragraph_id":"para_118"},{"text":"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 …","paragraph_id":"para_119"},{"text":"(g)","paragraph_id":"para_120"},{"text":"Granting payments to Acer between September 2003 and January 2004 conditional on Acer delaying an AMD-based x86 CPU notebook;","paragraph_id":"para_121"},{"text":"(h)","paragraph_id":"para_122"},{"text":"Granting payments to Lenovo between June 2006 and December 2006 conditional on Lenovo delaying and finally cancelling its AMD-based x86 CPU notebooks.","paragraph_id":"para_123"},{"text":"Article 2","paragraph_id":"para_124"},{"text":"For the infringement referred to in Article 1, a fine of EUR 1060000000 is imposed on Intel …","paragraph_id":"para_125"},{"text":"Article 3","paragraph_id":"para_126"},{"text":"Intel … shall immediately bring to an end the infringement referred to in Article 1 in so far as it has not already done so.","paragraph_id":"para_127"},{"text":"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.","paragraph_id":"para_128"},{"text":"…’","paragraph_id":"para_129"},{"text":"The first set of proceedings before the General Court and the Court of Justice","paragraph_id":"para_130"},{"text":"20","paragraph_id":"para_131"},{"text":"By application lodged at the Registry of the General Court on 22 July 2009, Intel brought an action for the annulment of the decision at issue, relying on nine pleas in law.","paragraph_id":"para_132"},{"text":"21","paragraph_id":"para_133"},{"text":"Association for Competitive Technology Inc. (‘ACT’) and the Union fédérale des consommateurs – Que choisir (UFC – Que choisir) were granted leave to intervene in the proceedings in support of Intel and of the Commission respectively.","paragraph_id":"para_134"},{"text":"22","paragraph_id":"para_135"},{"text":"By judgment of 12 June 2014, Intel v Commission ( T‑286/09 , the initial judgment, EU:T:2014:547 ), the General Court dismissed the action in its entirety. The dismissal of that action was based, inter alia, on two premisses concerning the role of the AEC test used by the Commission to analyse the i …","paragraph_id":"para_136"},{"text":"23","paragraph_id":"para_137"},{"text":"By document lodged at the Registry of the Court of Justice on 26 August 2014, Intel brought an appeal against the initial judgment. In support of that appeal, Intel put forward six grounds of appeal.","paragraph_id":"para_138"},{"text":"24","paragraph_id":"para_139"},{"text":"By judgment of 6 September 2017, Intel v Commission ( C‑413/14 P , the judgment on the appeal, EU:C:2017:632 ), the Court of Justice set aside the initial judgment and referred the case back to the General Court.","paragraph_id":"para_140"},{"text":"25","paragraph_id":"para_141"},{"text":"In particular, after rejecting the fifth and fourth grounds of appeal, alleging, respectively, the misapplication by the General Court of the criteria relating to the Commission’s jurisdiction with regard to the agreements concluded between Intel and Lenovo, and a procedural irregularity, the Court …","paragraph_id":"para_142"},{"text":"26","paragraph_id":"para_143"},{"text":"In that regard, in paragraphs 133 and 134 of the judgment on the appeal, the Court of Justice emphasised that it is in no way the purpose of Article 102 TFEU to prevent an undertaking from acquiring, on its own merits, a dominant position on a market. Nor does that provision seek to ensure that comp …","paragraph_id":"para_144"},{"text":"27","paragraph_id":"para_145"},{"text":"In paragraphs 135 to 137 of the judgment on the appeal, the Court of Justice nevertheless recalled that, given the special responsibility of an undertaking in a dominant position not to allow its behaviour to impair genuine, undistorted competition on the internal market, it cannot foreclose its com …","paragraph_id":"para_146"},{"text":"28","paragraph_id":"para_147"},{"text":"That being so, in paragraphs 138 and 139 of the judgment on the appeal, the Court of Justice stated that, where the undertaking concerned submits, during the administrative procedure, on the basis of supporting evidence, that its conduct, consisting of the application of loyalty rebates, was not cap …","paragraph_id":"para_148"},{"text":"29","paragraph_id":"para_149"},{"text":"Thus, the Court of Justice found, in paragraphs 143 and 144 of the judgment on the appeal, that the AEC test had played an important role in the Commission’s assessment of whether the contested rebates were capable of having foreclosure effects on competitors as efficient as Intel, with the result that the General Court was required to examine all of Intel’s arguments concerning that test.","paragraph_id":"para_150"},{"text":"30","paragraph_id":"para_151"},{"text":"However, as set out in paragraphs 145 and 146 of the judgment on the appeal, the General Court had held, in the initial judgment, that it was not necessary to consider whether the Commission had carried out the AEC test in accordance with the applicable rules and without making any errors, and that …","paragraph_id":"para_152"},{"text":"31","paragraph_id":"para_153"},{"text":"In those circumstances, the Court of Justice held, in paragraph 147 of the judgment on the appeal, that it was necessary to set aside the initial judgment, since, in its analysis of whether the contested rebates were capable of restricting competition, the General Court had wrongly failed to take into consideration Intel’s line of argument seeking to expose alleged errors made by the Commission in the AEC test.","paragraph_id":"para_154"},{"text":"32","paragraph_id":"para_155"},{"text":"Thus, in paragraphs 149 and 150 of the judgment on the appeal, the Court of Justice held that it was for the General Court, to which the case had to be referred back, to examine, in the light of the arguments put forward by Intel, whether the contested rebates were capable of restricting competition.","paragraph_id":"para_156"},{"text":"The procedure before the General Court following the referral of the case back to it and the judgment under appeal","paragraph_id":"para_157"},{"text":"33","paragraph_id":"para_158"},{"text":"On 14, 15 and 16 November 2017 respectively, ACT, Intel and the Commission submitted their written observations on the conclusions to be drawn from the judgment on the appeal for the outcome of the proceedings, pursuant to Article 217(1) of the Rules of Procedure of the General Court (‘the main observations on the referral of the case back to the General Court’).","paragraph_id":"para_159"},{"text":"34","paragraph_id":"para_160"},{"text":"On 20 February 2018, ACT and, on 5 March 2018, Intel and the Commission, respectively, lodged supplementary written observations in accordance with Article 217(3) of the Rules of Procedure of the General Court (‘the supplementary observations on the referral of the case back to the General Court’).","paragraph_id":"para_161"},{"text":"35","paragraph_id":"para_162"},{"text":"In its main observations on the referral of the case back to the General Court, Intel, supported by ACT, reiterated, inter alia, its application for annulment of the decision at issue. The Commission, for its part, contended that the General Court should dismiss the action.","paragraph_id":"para_163"},{"text":"36","paragraph_id":"para_164"},{"text":"As a preliminary point, in paragraphs 74 to 102 of the judgment under appeal, the General Court ruled on the subject matter of the proceedings following the referral of the case back to it and, in paragraphs 103 to 111 of that judgment, on the admissibility of Intel’s and ACT’s main and supplementary observations on the referral of the case back to the General Court.","paragraph_id":"para_165"},{"text":"37","paragraph_id":"para_166"},{"text":"As regards the subject matter of the proceedings before it after the case had been referred back to it, the General Court concluded that the proceedings concerned, in essence, the analysis of whether the contested rebates were capable of restricting competition in the light, first, of the clarificat …","paragraph_id":"para_167"},{"text":"38","paragraph_id":"para_168"},{"text":"In that regard, the General Court endorsed the findings in the initial judgment concerning the naked restrictions and their unlawfulness under Article 102 TFEU and the assessments in that judgment concerning the characterisation of the contested rebates as ‘exclusivity rebates’. However, the General …","paragraph_id":"para_169"},{"text":"39","paragraph_id":"para_170"},{"text":"As regards the admissibility of Intel’s and ACT’s main and supplementary observations on the referral of the case back to the General Court, the General Court pointed out that Article 84(1) of its Rules of Procedure does not preclude Intel from devoting a substantial part of those observations to re …","paragraph_id":"para_171"},{"text":"40","paragraph_id":"para_172"},{"text":"Next, after recalling the method defined by the Court of Justice for assessing whether a rebate scheme has the capability to restrict competition and the principles arising from the judgment on the appeal, the General Court assessed the merits of the arguments raised by Intel and by ACT.","paragraph_id":"para_173"},{"text":"41","paragraph_id":"para_174"},{"text":"In that context, the General Court examined, as a first step, the argument that the decision at issue is based on an incorrect legal assessment. In that regard, the General Court held that, in taking as a starting point the premiss that it could validly find that the contested rebates infringed Arti …","paragraph_id":"para_175"},{"text":"42","paragraph_id":"para_176"},{"text":"The section of the judgment under appeal devoted to those arguments consists of four subsections. The grounds set out in paragraphs 150 and 151 of the judgment under appeal concern the scope of the General Court’s review.","paragraph_id":"para_177"},{"text":"43","paragraph_id":"para_178"},{"text":"The grounds set out in paragraphs 152 to 159 of that judgment are devoted to general considerations on the AEC test carried out in the decision at issue. Those paragraphs of the judgment under appeal are worded as follows:","paragraph_id":"para_179"},{"text":"‘152","paragraph_id":"para_180"},{"text":"The starting point for the AEC test, as defined in recital 1003 et seq. of the [decision at issue] and applied by the Commission in the present case, is that, given, in particular, the nature of its product, its brand image and its profile, Intel was an unavoidable trading partner and that the OEMs …","paragraph_id":"para_181"},{"text":"153","paragraph_id":"para_182"},{"text":"As the [General] Court observed in paragraph 141 of the initial judgment, the AEC test carried out in the [decision at issue] starts from the premiss that [a competitor as efficient as Intel], which seeks to obtain the contestable share of the orders hitherto satisfied by a dominant undertaking, mus …","paragraph_id":"para_183"},{"text":"154","paragraph_id":"para_184"},{"text":"The AEC test, as applied in the present case, establishes the price at which a competitor as efficient as Intel would have had to offer its x86 CPUs in order to compensate an OEM for the loss of any exclusivity payment granted by Intel. In the AEC test, that price is called the “effective price” or “EP”.","paragraph_id":"para_185"},{"text":"155","paragraph_id":"para_186"},{"text":"In principle, the portion of the total rebates for which [a competitor as efficient as Intel] must offer compensation comprises only the amount of the rebates which is subject to the exclusive supply condition, excluding quantity rebates (“the conditional portion of the rebates”). As is apparent in …","paragraph_id":"para_187"},{"text":"156","paragraph_id":"para_188"},{"text":"The smaller the contestable share and, therefore, the smaller the quantity of products for which the alternative supplier may compete, the greater the likelihood that the exclusivity payment will be capable of foreclosing [a competitor as efficient as the dominant undertaking]. If the loss of paymen …","paragraph_id":"para_189"},{"text":"157","paragraph_id":"para_190"},{"text":"The effective price must be compared with Intel’s measure of viable cost. Intel’s measure of viable cost adopted in the [decision at issue] is that of the average avoidable cost …","paragraph_id":"para_191"},{"text":"158","paragraph_id":"para_192"},{"text":"As is apparent in particular from recital 1006 of the [decision at issue], it may be concluded that a system of exclusivity payments is capable of foreclosing market access for equally efficient competitors [as Intel] if the effective price is below Intel’s [average avoidable cost]. In that situatio …","paragraph_id":"para_193"},{"text":"159","paragraph_id":"para_194"},{"text":"It is in the light of those general considerations that the [General] Court must examine the substance of [Intel’s] arguments that the AEC [test] is vitiated by numerous errors.’","paragraph_id":"para_195"},{"text":"44","paragraph_id":"para_196"},{"text":"It is apparent, in particular, from paragraphs 175, 258, 260, 283, 285, 286, 297 to 299 and 334 of the judgment under appeal that, according to the methodology adopted by the Commission, the result – positive or negative – of the AEC test, within the meaning set out in paragraph 158 of that judgment …","paragraph_id":"para_197"},{"text":"45","paragraph_id":"para_198"},{"text":"The grounds set out in paragraphs 160 to 166 of the judgment under appeal relate to the burden of proof and the standard of proof required.","paragraph_id":"para_199"},{"text":"46","paragraph_id":"para_200"},{"text":"In the grounds set out in paragraphs 167 to 482 of that judgment, the General Court examined the merits of Intel’s arguments that the decision at issue was vitiated by numerous errors as regards the AEC test.","paragraph_id":"para_201"},{"text":"47","paragraph_id":"para_202"},{"text":"Those grounds are divided into five parts, each of which deals with the arguments which Intel raised concerning the AEC test contained in the decision at issue as regards the four OEMs concerned, namely Dell, HP, NEC and Lenovo, on the one hand, and the retailer MSH, on the other.","paragraph_id":"para_203"},{"text":"48","paragraph_id":"para_204"},{"text":"The General Court’s analysis of Dell’s situation is set out in paragraphs 202 to 282 of the judgment under appeal. Following that analysis, the General Court held, first, in paragraph 283 of that judgment, that the Commission had not established to the requisite legal standard that its assumption th …","paragraph_id":"para_205"},{"text":"49","paragraph_id":"para_206"},{"text":"Second, in paragraph 284 of the judgment under appeal, the General Court held that the factors which, according to the Commission, reinforced the estimated foreclosure capability of the contested rebates, those factors being, in essence, that any loss of Intel’s rebates would result in increased reb …","paragraph_id":"para_207"},{"text":"50","paragraph_id":"para_208"},{"text":"In paragraph 285 of the judgment under appeal, the General Court recalled that, according to recital 1281 of the decision at issue, the conclusions which the Commission had reached as regards the capability of the contested rebates granted to Dell to have an anticompetitive foreclosure effect were inferred from the comparison of the contestable share and the required share, the reinforcing factors and that alternative calculation method.","paragraph_id":"para_209"},{"text":"51","paragraph_id":"para_210"},{"text":"In those circumstances, the General Court held, in paragraph 286 of the judgment under appeal, that the Commission had not been in a position to establish, on the basis of the comparison of the contestable share and the required share and the reinforcing factors, the capability of the contested reba …","paragraph_id":"para_211"},{"text":"52","paragraph_id":"para_212"},{"text":"Accordingly, in paragraph 287 of the judgment under appeal, the General Court upheld Intel’s complaint that the Commission had not established to the requisite legal standard the validity of the conclusion set out in recital 1281 of the decision at issue that, over the period between December 2002 a …","paragraph_id":"para_213"},{"text":"53","paragraph_id":"para_214"},{"text":"The General Court’s analysis of HP’s situation is set out in paragraphs 288 to 335 of the judgment under appeal. After examining a series of factors relating to the volume of purchases, the amount of the rebates and the average sales price of the x86 CPU, the General Court held, in paragraph 319 of …","paragraph_id":"para_215"},{"text":"54","paragraph_id":"para_216"},{"text":"In addition, in paragraph 320 of the judgment under appeal, the General Court held that the fact that the Commission had carried out an alternative calculation of the required share in recital 1389 of the decision at issue, using the figures set out in recital 1338 of that decision, could not make up for that error, since that alternative calculation also did not cover the whole of the period between November 2002 and May 2005.","paragraph_id":"para_217"},{"text":"55","paragraph_id":"para_218"},{"text":"Moreover, in paragraphs 328 to 331 of the judgment under appeal, the General Court held, with regard to the reinforcing factor consisting of a transfer of the contested rebates initially granted by Intel to HP to one of HP’s competitors, that the Commission should have specified which of the factors taken into account in the AEC test would have been influenced and how. Therefore, the decision at issue was vitiated by a failure to state reasons.","paragraph_id":"para_219"},{"text":"56","paragraph_id":"para_220"},{"text":"In those circumstances, the General Court concluded, in paragraph 335 of the judgment under appeal, that the Commission had not established to the requisite legal standard the validity of the conclusion set out in recital 1406 of the decision at issue that, during the period from November 2002 to Ma …","paragraph_id":"para_221"},{"text":"57","paragraph_id":"para_222"},{"text":"The General Court’s analysis of NEC’s situation is set out in paragraphs 336 to 411 of the judgment under appeal. In paragraph 411 of the judgment under appeal, the General Court held that, by attributing an exaggerated value to the conditional portion of the rebates and by extrapolating the results …","paragraph_id":"para_223"},{"text":"58","paragraph_id":"para_224"},{"text":"The General Court’s analysis of Lenovo’s situation is set out in paragraphs 412 to 457 of the judgment under appeal. In paragraph 439 of that judgment, the General Court held that the calculations made by the Commission in order to establish the conditional portion of the rebates and, consequently, …","paragraph_id":"para_225"},{"text":"59","paragraph_id":"para_226"},{"text":"After finding, in paragraphs 440 to 456 of the judgment under appeal, that that finding could not be invalidated by the Commission’s arguments, the General Court held, in paragraph 457 of that judgment, that the Commission had not established to the requisite legal standard the validity of the concl …","paragraph_id":"para_227"},{"text":"60","paragraph_id":"para_228"},{"text":"The General Court’s analysis of MSH’s situation is set out in paragraphs 458 to 481 of the judgment under appeal. In paragraphs 466 to 480 of that judgment, the General Court focused on the ‘double conditional rebate’ method. That method is based on the idea that, in order to be able to sell compute …","paragraph_id":"para_229"},{"text":"61","paragraph_id":"para_230"},{"text":"In those circumstances, the General Court held, in paragraph 482 of the judgment under appeal, that it had to accept Intel’s argument that the AEC test carried out by the Commission in the decision at issue with regard to Dell, HP, NEC, Lenovo and MSH was vitiated by errors.","paragraph_id":"para_231"},{"text":"62","paragraph_id":"para_232"},{"text":"Next, the General Court examined, in paragraphs 483 to 521 of the judgment under appeal, the arguments made by Intel and ACT to the effect that the Commission had not analysed properly, as criteria referred to in paragraph 139 of the judgment on the appeal, the share of the market covered by the contested rebates, on the one hand, and the duration and amount of those rebates, on the other.","paragraph_id":"para_233"},{"text":"63","paragraph_id":"para_234"},{"text":"As regards the share of the market covered by the contested rebates, in paragraph 485 of the judgment under appeal, the General Court identified Section 4.2.4 of the decision at issue, which contains recitals 1577 to 1596 of that decision, as being relevant in respect of the strategic importance of …","paragraph_id":"para_235"},{"text":"64","paragraph_id":"para_236"},{"text":"In paragraph 493 of the judgment under appeal, the General Court held that it could not be ruled out that Section 4.2.4 of the decision at issue might have been relevant in examining the share of the market covered by the contested rebates, in that it deals with certain factors which are a priori re …","paragraph_id":"para_237"},{"text":"65","paragraph_id":"para_238"},{"text":"In that regard, in paragraph 495 of the judgment under appeal, the General Court observed that, on the assumption that the Commission could legitimately rely on the market shares of certain OEMs rather than examining the share of the market covered by the contested rebates, the Commission had taken …","paragraph_id":"para_239"},{"text":"66","paragraph_id":"para_240"},{"text":"In those circumstances, the General Court noted, in paragraphs 499 and 500 of the judgment under appeal, that the Commission had failed to determine the share of the market covered by the contested rebates, contrary to the requirement placed on it pursuant to paragraph 139 of the judgment on the appeal, and concluded that it had not considered properly the criterion relating to that share of the market covered.","paragraph_id":"para_241"},{"text":"67","paragraph_id":"para_242"},{"text":"As regards the duration of the contested rebates, the General Court identified, in paragraphs 508 to 515 of the judgment under appeal, two groups of recitals of the decision at issue in which the Commission had examined factors relating to that duration. Those are, first, recitals 1013 to 1035 of that decision and, second, recitals 201, 202, 965 to 968 and 1227 thereof.","paragraph_id":"para_243"},{"text":"68","paragraph_id":"para_244"},{"text":"In that regard, the General Court held, first, that the purpose of recitals 1013 to 1035 of the decision at issue was solely to define the time horizon, in the present case one year, on which the OEMs based their decisions regarding their supply requirements for x86 CPUs as an assumption underlying the calculation of the contestable share of the contested rebates granted by Intel to each of the OEMs concerned.","paragraph_id":"para_245"},{"text":"69","paragraph_id":"para_246"},{"text":"Therefore, according to the General Court, the Commission used such a time horizon to determine the methodology for calculating an OEM’s contestable share, which then had to be compared with other factors in the AEC test in order to assess whether the contested rebates could have an anticompetitive …","paragraph_id":"para_247"},{"text":"70","paragraph_id":"para_248"},{"text":"Second, it is true that, in recitals 201, 202, 965 to 968 and 1227 of the decision at issue, the Commission examined the duration and form of the OEMs’ commitments to Intel giving them a right to rebates as factors capable of encouraging or hindering a new competitor’s entry into the market, having regard in particular to the temporal scope of those commitments or Intel’s ability to pay or adjust its rebates within a short time frame.","paragraph_id":"para_249"},{"text":"71","paragraph_id":"para_250"},{"text":"However, according to the General Court, although those aspects of the time horizon appeared to it to be relevant, the Commission examined them only in a haphazard and limited manner. It did not carry out an examination of those aspects for all OEMs as a relevant factor for determining the capability of the contested rebates to have an anticompetitive foreclosure effect.","paragraph_id":"para_251"},{"text":"72","paragraph_id":"para_252"},{"text":"In addition, in paragraphs 516 to 518 of the judgment under appeal, the General Court rejected an argument put forward by the Commission to the effect that, even if the AEC test did not demonstrate the capability of the contested rebates to have a foreclosure effect, it was the total period during w …","paragraph_id":"para_253"},{"text":"73","paragraph_id":"para_254"},{"text":"In that regard, the General Court noted, first, that the initial judgment had been set aside in its entirety by the Court of Justice, so that it was required, following the referral of the case back to it, to carry out a fresh examination of the parties’ arguments concerning the duration of the rebates, without being bound by paragraphs 93 and 195 of that judgment.","paragraph_id":"para_255"},{"text":"74","paragraph_id":"para_256"},{"text":"Second, the General Court considered that, in the light of all of the criteria referred to in paragraph 139 of the judgment on the appeal, which must be examined in the case where the undertaking concerned submits, on the basis of supporting evidence, that its conduct was not capable of restricting …","paragraph_id":"para_257"},{"text":"75","paragraph_id":"para_258"},{"text":"For the same reasons, the General Court rejected, in paragraph 519 of the judgment under appeal, the Commission’s argument that the duration of the contested rebates could not be isolated from their timing, since they had been necessary to overcome Intel’s inability to produce a timely technical response to AMD’s 64-bit x86 CPUs.","paragraph_id":"para_259"},{"text":"76","paragraph_id":"para_260"},{"text":"On the basis of those considerations, the General Court held, in paragraph 520 of the judgment under appeal, that the Commission had erred in failing to examine, in the decision at issue, the duration of the rebates as evidence making it possible to determine the capability of the contested rebates to have an anticompetitive foreclosure effect.","paragraph_id":"para_261"},{"text":"77","paragraph_id":"para_262"},{"text":"Thus, in paragraph 521 of the judgment under appeal, the General Court held that Intel was justified in maintaining that the analysis in the decision at issue of the criteria mentioned in paragraph 139 of the judgment on the appeal was vitiated by a number of errors, in that the Commission had not c …","paragraph_id":"para_263"},{"text":"78","paragraph_id":"para_264"},{"text":"In the concluding paragraphs of the judgment under appeal, the General Court summarised the grounds underlying the operative part of that judgment.","paragraph_id":"para_265"},{"text":"79","paragraph_id":"para_266"},{"text":"In that regard, in paragraph 523 of the judgment under appeal, the General Court recalled that Intel had submitted, during the administrative procedure, on the basis of supporting evidence, that the contested rebates had not been capable of producing the alleged foreclosure effects. In recitals 1002 …","paragraph_id":"para_267"},{"text":"80","paragraph_id":"para_268"},{"text":"In paragraph 524 of the judgment under appeal, the General Court stated that it followed, however, from the assessments relating to the pleas and arguments examined, first, that the AEC test carried out in the decision at issue was vitiated by errors and, second, as regards the criteria mentioned in …","paragraph_id":"para_269"},{"text":"81","paragraph_id":"para_270"},{"text":"As regards, in particular, the rebates granted to HP, in paragraph 525 of the judgment under appeal, the General Court recalled that the Commission had not established to the requisite legal standard its finding that, during the period from November 2002 to May 2005, the contested rebates granted to …","paragraph_id":"para_271"},{"text":"82","paragraph_id":"para_272"},{"text":"Thus, in paragraphs 526 and 527 of the judgment under appeal, the General Court held that the Commission had not been in a position to determine that the contested rebates and the payments at issue made by Intel were capable of having or likely to have anticompetitive foreclosure effects and that th …","paragraph_id":"para_273"},{"text":"83","paragraph_id":"para_274"},{"text":"In those circumstances, the General Court annulled, first, Article 1(a) to (e) and Article 2 of the decision at issue and, second, Article 3 of that decision solely with regard to the conduct described in Article 1(a) to (e) thereof. By contrast, having accepted the findings in the initial judgment concerning the naked restrictions and their unlawfulness under Article 102 TFEU, the General Court dismissed the action as to the remainder.","paragraph_id":"para_275"},{"text":"Procedure before the Court of Justice and forms of order sought","paragraph_id":"para_276"},{"text":"84","paragraph_id":"para_277"},{"text":"By decision of the President of the Court of Justice of 5 August 2022, the Federal Republic of Germany was granted leave to intervene in the present proceedings in support of the form of order sought by the Commission.","paragraph_id":"para_278"},{"text":"85","paragraph_id":"para_279"},{"text":"The Commission claims that the Court of Justice should:","paragraph_id":"para_280"},{"text":"–","paragraph_id":"para_281"},{"text":"set aside the judgment under appeal, with the exception of paragraph 3 of the operative part, pursuant to which the General Court dismissed the action before it as to the remainder;","paragraph_id":"para_282"},{"text":"–","paragraph_id":"para_283"},{"text":"refer the case back to the General Court, and","paragraph_id":"para_284"},{"text":"–","paragraph_id":"para_285"},{"text":"reserve the costs.","paragraph_id":"para_286"},{"text":"86","paragraph_id":"para_287"},{"text":"Intel and ACT contend that the Court of Justice should:","paragraph_id":"para_288"},{"text":"–","paragraph_id":"para_289"},{"text":"dismiss the appeal, and","paragraph_id":"para_290"},{"text":"–","paragraph_id":"para_291"},{"text":"order the Commission to pay the costs relating to the appeal and the Federal Republic of Germany to pay the costs relating to its intervention.","paragraph_id":"para_292"},{"text":"87","paragraph_id":"para_293"},{"text":"The Federal Republic of Germany claims that the Court of Justice should:","paragraph_id":"para_294"},{"text":"–","paragraph_id":"para_295"},{"text":"set aside the judgment under appeal, save for paragraph 3 of its operative part;","paragraph_id":"para_296"},{"text":"–","paragraph_id":"para_297"},{"text":"refer the case back to the General Court, and","paragraph_id":"para_298"},{"text":"–","paragraph_id":"para_299"},{"text":"reserve the costs.","paragraph_id":"para_300"},{"text":"The appeal","paragraph_id":"para_301"},{"text":"88","paragraph_id":"para_302"},{"text":"The Commission puts forward six grounds of appeal:","paragraph_id":"para_303"},{"text":"–","paragraph_id":"para_304"},{"text":"the first alleges infringement of the principle of ne ultra petita , together with a misinterpretation and misapplication of the criteria established by the Court of Justice in the judgment on the appeal, as regards the capability of the contested rebates to foreclose competition;","paragraph_id":"para_305"},{"text":"–","paragraph_id":"para_306"},{"text":"the second alleges infringement of the Commission’s rights of defence in the examination of the AEC test;","paragraph_id":"para_307"},{"text":"–","paragraph_id":"para_308"},{"text":"the third alleges an error of law as regards the evidence required, infringement of the rights of the defence and distortion of the evidence in the examination of the AEC test in relation to Dell;","paragraph_id":"para_309"},{"text":"–","paragraph_id":"para_310"},{"text":"the fourth alleges several errors of law and infringement of the Commission’s rights of defence in the examination of the AEC test in relation to HP;","paragraph_id":"para_311"},{"text":"–","paragraph_id":"para_312"},{"text":"the fifth alleges misinterpretation of the AEC test carried out by the Commission and of Article 102 TFEU, distortion of the evidence and infringement of the Commission’s rights of defence in the examination of the AEC test in relation to Lenovo, and","paragraph_id":"para_313"},{"text":"–","paragraph_id":"para_314"},{"text":"the sixth alleges an incorrect assessment of the consequences to be drawn from the errors found in the AEC test.","paragraph_id":"para_315"},{"text":"89","paragraph_id":"para_316"},{"text":"Before setting out its response to each of the grounds of appeal, Intel, supported by ACT, observes that those grounds of appeal are ineffective on the ground that the Commission did not call into question the General Court’s analysis in paragraphs 144 to 149 of the judgment under appeal. According …","paragraph_id":"para_317"},{"text":"90","paragraph_id":"para_318"},{"text":"That argument cannot be accepted. As the General Court observed, in essence, in paragraph 149 of the judgment under appeal, the error relating to the characterisation of the contested rebates as, by their very nature, constituting an infringement of Article 102 TFEU was not sufficient to annul the d …","paragraph_id":"para_319"},{"text":"The first ground of appeal, alleging that the General Court ruled ultra petita and that it misinterpreted and misapplied the capability of the contested rebates to foreclose competition","paragraph_id":"para_320"},{"text":"91","paragraph_id":"para_321"},{"text":"The first ground of appeal consists of two parts, alleging, respectively, that the General Court ruled ultra petita and, in the alternative, that it misinterpreted and misapplied the criteria for recognising the capability of the contested rebates to foreclose competition.","paragraph_id":"para_322"},{"text":"The first part, alleging that the General Court ruled ultra petita","paragraph_id":"para_323"},{"text":"–  Arguments of the parties","paragraph_id":"para_324"},{"text":"92","paragraph_id":"para_325"},{"text":"The Commission claims that Intel had not raised, in its application at first instance, any argument to the effect that the scope of the examination, in the decision at issue, of the criteria relating to the share of the market covered and to the duration of the contested rebates was insufficient. Intel argued to that effect only in the main observations on the referral of the case back to the General Court.","paragraph_id":"para_326"},{"text":"93","paragraph_id":"para_327"},{"text":"First, according to the Commission, that application contains no reference to the recitals of the decision at issue relating to the strategic significance of the OEMs that benefited from the contested rebates. In its appeal against the initial judgment, Intel challenged only the General Court’s asse …","paragraph_id":"para_328"},{"text":"94","paragraph_id":"para_329"},{"text":"Second, and similarly, Intel did not call into question the scope of the Commission’s analysis of the duration of the contested rebates, but merely challenged the validity of the Commission’s approach of cumulating the short-term agreements concluded with the OEMs and MSH, which is a subsequent issu …","paragraph_id":"para_330"},{"text":"95","paragraph_id":"para_331"},{"text":"Intel, supported by ACT, disputes the merits of this part of the first ground of appeal.","paragraph_id":"para_332"},{"text":"–  Findings of the Court","paragraph_id":"para_333"},{"text":"96","paragraph_id":"para_334"},{"text":"It follows from the rules governing the procedure before the Courts of the European Union, in particular Article 21 of the Statute of the Court of Justice of the European Union and Article 76 and Article 84(1) of the Rules of Procedure of the General Court, that the dispute is in principle determine …","paragraph_id":"para_335"},{"text":"97","paragraph_id":"para_336"},{"text":"In the present case, as stated in paragraph 83 of the present judgment, the General Court annulled, first, Article 1(a) to (e) and Article 2 of the decision at issue and, second, Article 3 of that decision solely with regard to the conduct described in Article 1(a) to (e) thereof. Furthermore, pursu …","paragraph_id":"para_337"},{"text":"98","paragraph_id":"para_338"},{"text":"It should be noted in that regard that, in paragraph 674 of the application, Intel sought, inter alia, the annulment of the decision at issue in its entirety, so that the annulment granted by the General Court falls short of that sought by Intel. It follows that, in so far as the Commission formally objects that the General Court ruled ultra petita , that complaint must be rejected.","paragraph_id":"para_339"},{"text":"99","paragraph_id":"para_340"},{"text":"The Commission also objects that the General Court reviewed, in paragraphs 485 to 500 of the judgment under appeal, the lawfulness of the assessments made by the Commission in the decision at issue concerning the share of the market covered by the contested rebates in the light of a plea raised for …","paragraph_id":"para_341"},{"text":"100","paragraph_id":"para_342"},{"text":"In that regard, it must be borne in mind that, according to Article 84(1) of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.","paragraph_id":"para_343"},{"text":"101","paragraph_id":"para_344"},{"text":"It follows that, as the General Court correctly pointed out in paragraph 106 of the judgment under appeal, following the referral judgment of the Court of Justice, the parties are not entitled, in principle, to rely on pleas which were not raised in the procedure which gave rise to the judgment of t …","paragraph_id":"para_345"},{"text":"102","paragraph_id":"para_346"},{"text":"In the present case, after stating, in paragraph 12 of the application, that, contrary to Article 102 TFEU, the Commission had failed to assess the capability of the contested rebates to restrict competition in the light of all the circumstances of the case, Intel stated, in paragraphs 115 to 117 of …","paragraph_id":"para_347"},{"text":"103","paragraph_id":"para_348"},{"text":"It follows that, by those complaints, Intel argued, in essence, before the General Court that the share of the market covered by the contested rebates was so low that any anticompetitive foreclosure capability could be ruled out. Accordingly, in assessing, in paragraphs 492 to 500 of the judgment un …","paragraph_id":"para_349"},{"text":"104","paragraph_id":"para_350"},{"text":"The Commission also submits that the examination, in the judgment under appeal, of the analysis of the duration of the contested rebates carried out in the decision at issue does not correspond to any plea raised in the application, but corresponds only to a new plea raised in Intel’s main and supplementary observations on the referral of the case back to the General Court, which is therefore inadmissible.","paragraph_id":"para_351"},{"text":"105","paragraph_id":"para_352"},{"text":"In that regard, in paragraphs 101 and 102 of the application, Intel emphasised the importance of the duration of a practice when assessing whether it was capable of restricting competition. In that context, in paragraphs 111 and 112 of the application, relating to the anticompetitive foreclosure cap …","paragraph_id":"para_353"},{"text":"106","paragraph_id":"para_354"},{"text":"It follows that, by those complaints, Intel claimed, in essence, that the duration of the contested rebates was such that it could not be assumed that they were capable of having an anticompetitive foreclosure effect. The General Court was therefore fully entitled to hold, in paragraph 506 of the ju …","paragraph_id":"para_355"},{"text":"107","paragraph_id":"para_356"},{"text":"It follows that the first part of the first ground of appeal must be rejected.","paragraph_id":"para_357"},{"text":"The second part, alleging misinterpretation and misapplication of the criteria relating to the capability of the contested rebates to foreclose competition","paragraph_id":"para_358"},{"text":"–  Arguments of the parties","paragraph_id":"para_359"},{"text":"108","paragraph_id":"para_360"},{"text":"In the alternative, the Commission submits that the General Court confined its examination of the criteria established in paragraph 139 of the judgment on the appeal to the sufficiency of the analysis of the share of the market covered by the contested rebates and of their duration, without taking i …","paragraph_id":"para_361"},{"text":"109","paragraph_id":"para_362"},{"text":"In that regard, according to the Commission, although they are not exhaustive, the criteria established by the Court of Justice in paragraph 139 of the judgment on the appeal form part of the relevant circumstances for the purpose of assessing the capability of a rebate scheme to foreclose competiti …","paragraph_id":"para_363"},{"text":"110","paragraph_id":"para_364"},{"text":"The General Court therefore appears to have adopted a formalistic approach, according to which the Commission should have examined all the criteria established in paragraph 139 of the judgment on the appeal and given each of them the same weight, irrespective of the relative importance of each crite …","paragraph_id":"para_365"},{"text":"111","paragraph_id":"para_366"},{"text":"According to the Commission, the General Court could not reach a conclusion on the capability of the conduct complained of to foreclose competition without examining (i) the extent of Intel’s dominant position on the relevant market; (ii) the conditions and arrangements for granting the contested rebates and their influence on the OEMs’ and MSH’s procurement decisions; (iii) the amount of those rebates; (iv) their timing and (v) the existence of an anticompetitive strategy.","paragraph_id":"para_367"},{"text":"112","paragraph_id":"para_368"},{"text":"In particular, according to the Commission, as regards the first two criteria mentioned in the preceding paragraph, Intel did not dispute the fact that the exclusive supply condition, on which the contested rebates depended, influenced the decisions of the OEMs and of MSH regarding their sources of …","paragraph_id":"para_369"},{"text":"113","paragraph_id":"para_370"},{"text":"The Commission submits that the General Court therefore annulled the decision at issue on the sole ground that the Commission had insufficiently analysed two of the criteria established in paragraph 139 of the judgment on the appeal. That fact is not sufficient to annul a measure that is based on a …","paragraph_id":"para_371"},{"text":"114","paragraph_id":"para_372"},{"text":"The Federal Republic of Germany submits that the General Court should have first examined whether, during the administrative procedure, Intel had raised sufficiently specific arguments concerning the share of the market covered by the contested rebates and the duration of those rebates to rebut the …","paragraph_id":"para_373"},{"text":"115","paragraph_id":"para_374"},{"text":"Intel and ACT dispute the merits of this part of the first ground of appeal.","paragraph_id":"para_375"},{"text":"–  Findings of the Court","paragraph_id":"para_376"},{"text":"116","paragraph_id":"para_377"},{"text":"It should be recalled that a party who, pursuant to Article 40 of the Statute of the Court of Justice of the European Union, is granted leave to intervene in a case submitted to the Court of Justice may not alter the subject matter of the dispute as defined by the forms of order sought and the groun …","paragraph_id":"para_378"},{"text":"117","paragraph_id":"para_379"},{"text":"The complaint raised by the Federal Republic of Germany, alleging that the General Court should have first examined whether, during the administrative procedure, Intel had raised specific arguments concerning the share of the market covered by the contested rebates and the duration of those rebates, …","paragraph_id":"para_380"},{"text":"118","paragraph_id":"para_381"},{"text":"As regards the complaints on which the Commission relies in the second part of the first ground of appeal, it should be noted that, in its appeal, the Commission states that that part is based on the premiss that the General Court annulled the decision at issue on the sole basis that the Commission …","paragraph_id":"para_382"},{"text":"119","paragraph_id":"para_383"},{"text":"In order to justify that premiss, the Commission relies on paragraph 525 of the judgment under appeal, the content of which is reproduced in paragraph 81 of the present judgment.","paragraph_id":"para_384"},{"text":"120","paragraph_id":"para_385"},{"text":"The Commission infers from that paragraph 525, which concerns in particular the contested rebates granted by Intel to HP, that, despite the express reference, made in paragraph 524 of the judgment under appeal, to three grounds underpinning the annulment of the decision at issue, namely, first, the …","paragraph_id":"para_386"},{"text":"121","paragraph_id":"para_387"},{"text":"In that regard, it should be recalled that, after finding, in paragraphs 145 and 147 of the judgment under appeal, that the approach adopted in the decision at issue, according to which the contested rebates were by their very nature abusive irrespective of whether they were capable of restricting c …","paragraph_id":"para_388"},{"text":"122","paragraph_id":"para_389"},{"text":"It was only after finding, in paragraph 482 of the judgment under appeal, that a large part of those arguments had to be upheld, that the General Court examined, in paragraphs 483 to 520 of that judgment, the arguments put forward by Intel and ACT to the effect that the Commission had not analysed p …","paragraph_id":"para_390"},{"text":"123","paragraph_id":"para_391"},{"text":"At the end of that examination, the General Court held, in paragraph 521 of the judgment under appeal, that Intel was justified in maintaining that the analysis in the decision at issue of the criteria mentioned in paragraph 139 of the judgment on the appeal was vitiated by a number of errors, in th …","paragraph_id":"para_392"},{"text":"124","paragraph_id":"para_393"},{"text":"Thus, in paragraphs 523 and 524 of the judgment under appeal, the General Court stated that, although the Commission had found, on the basis of an AEC test carried out in recitals 1002 to 1575 of the decision at issue, that the contested rebates were capable of foreclosing a competitor as efficient …","paragraph_id":"para_394"},{"text":"125","paragraph_id":"para_395"},{"text":"In that context, the General Court recalled, in paragraph 525 of the judgment under appeal, that the error found in the AEC test with regard, in particular, to the contested rebates granted to HP related to the period from 1 November 2002 to 30 September 2003, whereas the infringement period relatin …","paragraph_id":"para_396"},{"text":"126","paragraph_id":"para_397"},{"text":"It follows from the foregoing that the Commission has misread paragraph 525 of the judgment under appeal.","paragraph_id":"para_398"},{"text":"127","paragraph_id":"para_399"},{"text":"First, that paragraph 525, in so far as it relates solely to the rebates granted to HP, cannot call into question the fact that, as is apparent from paragraph 524 of the judgment under appeal, the capability of the contested rebates to foreclose a competitor as efficient as Intel from the market mad …","paragraph_id":"para_400"},{"text":"128","paragraph_id":"para_401"},{"text":"It follows that paragraph 525 of the judgment under appeal cannot be understood, in isolation from its context, to mean that the General Court’s analysis relating to the AEC test, carried out in paragraphs 150 to 482 of that judgment, should be disregarded, even though it is expressly stated, in par …","paragraph_id":"para_402"},{"text":"129","paragraph_id":"para_403"},{"text":"The inaccuracy of that premiss also means that the Commission cannot validly complain that the General Court annulled the decision at issue on purely formal grounds, according to which the Commission should have examined each of the criteria set out in paragraph 139 of the judgment on the appeal separately and with the same degree of detail, irrespective of the relative weight of each criterion in the light of the circumstances of the case.","paragraph_id":"para_404"},{"text":"130","paragraph_id":"para_405"},{"text":"In that regard, as is apparent from paragraphs 137 to 139 of the judgment on the appeal, the share of the market covered by the contested rebates and their duration are among the factors which the Commission must assess in order to establish that the undertaking concerned committed an abuse of a dom …","paragraph_id":"para_406"},{"text":"131","paragraph_id":"para_407"},{"text":"In that context, first, as is apparent from paragraphs 485, 493 to 495, 509 and 510 of the judgment under appeal, and contrary to what the Commission alleges, the General Court sought to identify the recitals of the decision at issue that might be relevant to the share of the market covered by the contested rebates and the duration of those rebates.","paragraph_id":"para_408"},{"text":"132","paragraph_id":"para_409"},{"text":"Second, it is apparent from paragraphs 493 to 500 and 506 to 520 of the judgment under appeal that the General Court identified a series of shortcomings vitiating the relevant recitals of the decision at issue that led it to find that the Commission had not considered properly the criterion relating …","paragraph_id":"para_410"},{"text":"133","paragraph_id":"para_411"},{"text":"Moreover, the Commission’s complaint, shared by the Federal Republic of Germany, that the General Court could not annul the decision at issue without examining the extent of Intel’s dominant position on the relevant market, the conditions and arrangements for granting the contested rebates and the p …","paragraph_id":"para_412"},{"text":"134","paragraph_id":"para_413"},{"text":"In that regard, first, in so far as it forms an integral part of the second part of the first ground of appeal, that complaint is also based on the incorrect premiss that the annulment of the decision at issue is based exclusively on the General Court’s findings relating to the share of the market covered by the contested rebates and the duration of those rebates.","paragraph_id":"para_414"},{"text":"135","paragraph_id":"para_415"},{"text":"Second, according to the judgment under appeal, the only analysis in the decision at issue seeking to demonstrate that the contested rebates constitute an abuse irrespective of their capability to foreclose a competitor as efficient as Intel is that set out, inter alia, in recitals 920 to 926, 950, …","paragraph_id":"para_416"},{"text":"136","paragraph_id":"para_417"},{"text":"In so far as the Commission relies on Intel’s dominant position, on the conditional nature of the rebates and on the existence of a strategy aiming to exclude a competitor of Intel from the market, irrespective of whether that competitor is as efficient as Intel, the arguments thus relied on in support of that complaint are based, implicitly but necessarily, on the idea that the contested rebates are abusive per se.","paragraph_id":"para_418"},{"text":"137","paragraph_id":"para_419"},{"text":"In so far as the Commission relies on the amount of the contested rebates, the reinforcing factors for the foreclosure effects and the strategic nature of the OEMs benefiting from those rebates, it must be noted that, contrary to what the Commission claims, the General Court examined those factors in its assessments regarding the AEC test, the share of the market covered by the contested rebates or the duration of those rebates.","paragraph_id":"para_420"},{"text":"138","paragraph_id":"para_421"},{"text":"The Commission thus claims, in reality, that the General Court failed to examine whether the various chapters of the decision at issue contain material that makes it possible to construct a line of reasoning that demonstrates the capability of the contested rebates to have an anticompetitive foreclo …","paragraph_id":"para_422"},{"text":"139","paragraph_id":"para_423"},{"text":"It follows that the General Court did not disregard the criteria relating to the capability of the contested rebates to foreclose competition in identifying, in paragraphs 150 to 527 of the judgment under appeal, the errors which, in its view, rendered unlawful the grounds of the decision at issue w …","paragraph_id":"para_424"},{"text":"140","paragraph_id":"para_425"},{"text":"Consequently, the second part of the first ground of appeal must be rejected, so that the first ground of appeal must be rejected in its entirety.","paragraph_id":"para_426"},{"text":"The second ground of appeal, alleging infringement of the Commission’s rights of defence","paragraph_id":"para_427"},{"text":"Arguments of the parties","paragraph_id":"para_428"},{"text":"141","paragraph_id":"para_429"},{"text":"According to the Commission, since the contested rebates granted by Intel are presumed to be abusive, the Commission cannot be required to state reasons for the decision at issue in such a way as to respond not only to the vast volume of evidence submitted by Intel during the administrative procedur …","paragraph_id":"para_430"},{"text":"142","paragraph_id":"para_431"},{"text":"In those circumstances, the General Court infringed the Commission’s rights of defence as regards (i) the calculation of Dell’s contestable share; (ii) the foreclosure capability of the contested rebates granted to HP between November 2002 and September 2003 and (iii) the value of the non-cash advantages granted to Lenovo.","paragraph_id":"para_432"},{"text":"143","paragraph_id":"para_433"},{"text":"Intel disputes the merits of the second ground of appeal.","paragraph_id":"para_434"},{"text":"Findings of the Court","paragraph_id":"para_435"},{"text":"144","paragraph_id":"para_436"},{"text":"It should be borne in mind, first, that, as is apparent from paragraphs 137 to 139 of the judgment on the appeal, the Commission is under an obligation to assess the possible existence of a strategy of the dominant undertaking aiming to exclude competitors that are at least as efficient as that unde …","paragraph_id":"para_437"},{"text":"145","paragraph_id":"para_438"},{"text":"It follows that, where that capability is demonstrated by the Commission by means of an AEC test taking into account the evidence provided by the undertaking concerned, the General Court cannot conclude that that test is invalid on the basis of evidence that that undertaking produced for the first time before it for that purpose, when that evidence was not known to the Commission and could have been submitted during the administrative procedure.","paragraph_id":"para_439"},{"text":"146","paragraph_id":"para_440"},{"text":"Second, according to the methodology adopted by the Commission to assess the capability of the contested rebates to foreclose a competitor as efficient as Intel, the positive or negative result of the AEC test, within the meaning set out in paragraph 158 of the judgment under appeal, is ultimately d …","paragraph_id":"para_441"},{"text":"147","paragraph_id":"para_442"},{"text":"In the first place, as regards Dell’s situation, in paragraphs 204 to 206, 215 and 220 of the judgment under appeal, the General Court presented the evidence relied on by Intel to dispute the calculation of the contestable share of 7.1% that the Commission had taken into account with regard to that undertaking in the decision at issue.","paragraph_id":"para_443"},{"text":"148","paragraph_id":"para_444"},{"text":"First, it presented an email dated 10 November 2005 and written by a Dell executive, referred to as ‘D 1’ (‘the D 1 email’), from which it is apparent that the switch of Dell’s requirements to AMD could concern up to 25% of the volume of x86 CPUs, that executive having, moreover, confirmed the conte …","paragraph_id":"para_445"},{"text":"149","paragraph_id":"para_446"},{"text":"Second, an email dated 9 March 2004 and written by another Dell executive, referred to as ‘D 5’, made reference to a possible switch of Dell supplies to AMD for 25% of the total volume of Dell’s x86 CPU requirements inside 90 days (‘the D 5 email’).","paragraph_id":"para_447"},{"text":"150","paragraph_id":"para_448"},{"text":"Third, a declaration made on 21 December 2007 by, as is apparent from paragraph 194 of the judgment under appeal, an Intel employee responsible for the relationship with Dell at the material time, referred to as ‘I1’, indicates that Intel internally estimated that Dell’s contestable share of x86 CPU requirements was between 15% and 25% in the first year (‘the I1 declaration’).","paragraph_id":"para_449"},{"text":"151","paragraph_id":"para_450"},{"text":"Fourth and last, a statement made by D 1 in the course of private litigation between Intel and AMD in the State of Delaware confirms the content of his email of 10 November 2005, while a statement made by another Dell executive, referred to as ‘D 3’, in the course of that litigation indicates that he had no reason to question the accuracy of D 1’s remarks.","paragraph_id":"para_451"},{"text":"152","paragraph_id":"para_452"},{"text":"It is apparent from paragraphs 174, 196, 209 to 211 and 222 of the judgment under appeal that, with the exception of the Salop-Hayes report, all the documents relied on by Intel formed part of the administrative file and that they were discussed in the decision at issue, which the Commission does no …","paragraph_id":"para_453"},{"text":"153","paragraph_id":"para_454"},{"text":"In that regard, it is apparent from paragraphs 171, 229, 233 and 234 of the judgment under appeal that, as regards the AEC test relating to Dell, the Commission used a contestable share of 7.1% on the basis of a spreadsheet dating from January 2004 (‘the 2004 spreadsheet’) that Dell had provided to …","paragraph_id":"para_455"},{"text":"154","paragraph_id":"para_456"},{"text":"In paragraph 175 of the judgment under appeal, the General Court referred to the comparison of the required share with the contestable share, as carried out by the Commission in the decision at issue. From that comparison, the Commission concluded that, for 9 of the 13 quarters comprising the infringement period concerning Dell, the required share was higher than the contestable share.","paragraph_id":"para_457"},{"text":"155","paragraph_id":"para_458"},{"text":"It is true that, as is apparent from paragraph 204 of the judgment under appeal, which sets out Intel’s arguments, the Salop-Hayes report made it possible to translate the volume projection of 25% of Dell’s requirements evidenced by the D 1 email and the D 5 email into a contestable share, establishing that share at 17.5% for the first year, a percentage that would be reduced to 12.5% if the Commission’s approach were to be used, which Intel rejects.","paragraph_id":"para_459"},{"text":"156","paragraph_id":"para_460"},{"text":"However, first, it is apparent from paragraphs 220 to 234 of the judgment under appeal, which set out the assessment of the evidence relied on by Intel before the General Court, that the General Court called into question the calculation of Dell’s contestable share in the decision at issue on the ba …","paragraph_id":"para_461"},{"text":"157","paragraph_id":"para_462"},{"text":"Consequently, contrary to the premiss underpinning the Commission’s reasoning, the General Court’s finding is not based on that report, so that the Commission’s argument must, in any event, be rejected.","paragraph_id":"para_463"},{"text":"158","paragraph_id":"para_464"},{"text":"Second, it is true that, in paragraph 236 of the judgment under appeal, the General Court recalled that taking into account the additional analyses submitted by the Commission for the first time before it in order to substantiate the AEC test contained in the decision at issue would lead it to subst …","paragraph_id":"para_465"},{"text":"159","paragraph_id":"para_466"},{"text":"In addition, in paragraphs 240 to 255 of the judgment under appeal, the General Court examined the evidence relating to the actual switch of Dell’s requirements to AMD in 2006 and in 2007, taking the view that that evidence supported the existence of doubt as to the establishment of Dell’s contestab …","paragraph_id":"para_467"},{"text":"160","paragraph_id":"para_468"},{"text":"Contrary to what is claimed by the Commission, the General Court’s findings relating to the actual switch of Dell’s requirements to AMD in 2006 and in 2007 are based exclusively on evidence that is apparent from the decision at issue. The General Court does not rely on any evidence submitted by Intel for the first time during the proceedings and the Commission does not indicate in which paragraph of the judgment under appeal the General Court relied on such evidence.","paragraph_id":"para_469"},{"text":"161","paragraph_id":"para_470"},{"text":"It follows that the Commission’s complaint that the General Court based its assessment relating to Dell’s contestable share on evidence produced for the first time before it without taking into account the analyses that the Commission submitted in order to refute the merits of that evidence is, in any event, based on incorrect premisses.","paragraph_id":"para_471"},{"text":"162","paragraph_id":"para_472"},{"text":"In the second place, with regard to HP, the General Court noted that the Commission had not demonstrated the existence of anticompetitive foreclosure effects between 1 November 2002 and 30 September 2003. The Commission submits that, if Intel was entitled to claim, for the first time before the General Court, that evidence relating to a certain period had not been included in the AEC test, the Commission should be allowed to supplement that test during the proceedings.","paragraph_id":"para_473"},{"text":"163","paragraph_id":"para_474"},{"text":"It must be pointed out, in that regard, that Intel’s line of argument before the General Court in relation to HP sought to challenge the legality of the AEC test contained in the decision at issue without relying on any evidence that had not been produced during the administrative procedure. It foll …","paragraph_id":"para_475"},{"text":"164","paragraph_id":"para_476"},{"text":"In the third place, the General Court considered that, in its analysis relating to the assessment of the amount of the contested rebates granted to Lenovo in the form of two non-cash advantages, namely the extension of Intel’s standard one-year warranty and improved use of a supply hub in China, on …","paragraph_id":"para_477"},{"text":"165","paragraph_id":"para_478"},{"text":"As is apparent from paragraphs 433 to 439 of the judgment under appeal, in support of that assessment, which concerns the principles of the AEC test, the General Court relied on the nature of that test as described in the decision at issue. Contrary to what the Commission argues in order to establis …","paragraph_id":"para_479"},{"text":"166","paragraph_id":"para_480"},{"text":"In those circumstances, the General Court’s refusal, apparent from paragraphs 443 and 444 of the judgment under appeal, to take into account the calculations submitted by the Commission relating to the actual costs for Intel of the non-cash advantages concerned, on the ground that taking them into account would lead it to substitute its own assessment for that contained in the decision at issue, does not constitute an infringement of the Commission’s rights of defence.","paragraph_id":"para_481"},{"text":"167","paragraph_id":"para_482"},{"text":"It was only as part of an analysis of the evidence produced by the Commission for the first time before it, carried out for the sake of completeness in paragraphs 451 to 453 of the judgment under appeal, that, in paragraph 452 of that judgment, the General Court referred to the supplementary Shapiro-Hayes report.","paragraph_id":"para_483"},{"text":"168","paragraph_id":"para_484"},{"text":"It follows from the foregoing that the second ground of appeal must be rejected.","paragraph_id":"para_485"},{"text":"The third ground of appeal, alleging an error of law concerning the evidence required, infringement of the Commission’s rights of defence and distortion of the evidence in the examination of the AEC test in relation to Dell","paragraph_id":"para_486"},{"text":"169","paragraph_id":"para_487"},{"text":"The third ground of appeal consists of three parts.","paragraph_id":"para_488"},{"text":"The first part, alleging an error of law concerning the standard of proof required","paragraph_id":"para_489"},{"text":"–  Arguments of the parties","paragraph_id":"para_490"},{"text":"170","paragraph_id":"para_491"},{"text":"The Commission submits that the General Court relied on incorrect legal criteria in order to appraise the evidence adduced by the Commission in support of its finding that there was an abuse of a dominant position. In particular, first, the AEC test does not rely on suppositions about conduct derive …","paragraph_id":"para_492"},{"text":"171","paragraph_id":"para_493"},{"text":"The Commission submits that the correct approach to the standard of proof and judicial review for an AEC test is therefore the approach which, without exempting the AEC test from judicial review, consists not only in establishing whether the evidence relied on is factually accurate, reliable and con …","paragraph_id":"para_494"},{"text":"172","paragraph_id":"para_495"},{"text":"According to the Commission, it was therefore on the basis of an incorrect standard of proof that the General Court rejected the assessment of Dell’s contestable share in the decision at issue by merely stating, in paragraph 244 of the judgment under appeal, that ‘the assumption of a 7.1% contestabl …","paragraph_id":"para_496"},{"text":"173","paragraph_id":"para_497"},{"text":"Intel disputes the merits of this part of the third ground of appeal.","paragraph_id":"para_498"},{"text":"–  Findings of the Court","paragraph_id":"para_499"},{"text":"174","paragraph_id":"para_500"},{"text":"In order to assess the merits of the Commission’s arguments, it is necessary to recall the context of the AEC test carried out in the present case.","paragraph_id":"para_501"},{"text":"175","paragraph_id":"para_502"},{"text":"In paragraphs 133 and 134 of the judgment on the appeal, the Court of Justice recalled that it is not the purpose of Article 102 TFEU to prevent an undertaking from acquiring, on its own merits, a dominant position on one or more markets or to ensure that competitors less efficient than the undertak …","paragraph_id":"para_503"},{"text":"176","paragraph_id":"para_504"},{"text":"Consequently, in order to find, in a given case, that conduct must be categorised as ‘abuse of a dominant position’, it is necessary, as a rule, to demonstrate, through the use of methods other than those which are part of competition on the merits between undertakings, that that conduct has the act …","paragraph_id":"para_505"},{"text":"177","paragraph_id":"para_506"},{"text":"In that context, in view of the special responsibility of an undertaking in a dominant position not to impair, by its conduct, genuine undistorted competition in the internal market, Article 102 TFEU prohibits it from engaging in practices, including pricing practices, which have an exclusionary eff …","paragraph_id":"para_507"},{"text":"178","paragraph_id":"para_508"},{"text":"Such a practice may take the form, as the Court of Justice points out in paragraph 137 of the judgment on the appeal, of a system of loyalty rebates, that is to say, discounts conditional on the customer’s obtaining all or most of its requirements – whether the quantity of its purchases from the undertaking in a dominant position be large or small – from that undertaking.","paragraph_id":"para_509"},{"text":"179","paragraph_id":"para_510"},{"text":"That being so, the demonstration that conduct has the actual or potential effect of restricting competition, which may entail the use of different analytical templates depending on the type of conduct at issue in a given case, must be made, in all cases, in the light of all the relevant factual circ …","paragraph_id":"para_511"},{"text":"180","paragraph_id":"para_512"},{"text":"Thus, as regards a practice consisting in the grant of loyalty rebates, in respect of which the undertaking in a dominant position submits, during the administrative procedure, on the basis of supporting evidence, that it was not capable of producing the alleged foreclosure effects, the Commission i …","paragraph_id":"para_513"},{"text":"181","paragraph_id":"para_514"},{"text":"The capability of such rebates to foreclose a competitor as efficient as the dominant undertaking, which competitor is supposed to meet the same costs as those borne by that undertaking, must be assessed, as a general rule, using the AEC test. Even though that test is merely one of the ways of asses …","paragraph_id":"para_515"},{"text":"182","paragraph_id":"para_516"},{"text":"In assessing the merits of the arguments raised by the Commission, it must also be borne in mind that, as set out in paragraphs 43 and 44 of the present judgment, the AEC test, as carried out in the present case, takes account, inter alia, of the possible loss of the contested rebates in the event of an OEM being supplied by AMD and is ultimately based on a comparison of the contestable share and the required share for each OEM and for MSH.","paragraph_id":"para_517"},{"text":"183","paragraph_id":"para_518"},{"text":"As regards the comparison of the contestable share and the required share, it is apparent from paragraph 175 of the judgment under appeal that the Commission set out the required share in Table 22 of the decision at issue (‘Table 22’).","paragraph_id":"para_519"},{"text":"184","paragraph_id":"para_520"},{"text":"In addition, in paragraph 171 of the judgment under appeal, the General Court states that the Commission used a contestable share of 7.1%, a figure that comes from the 2004 spreadsheet, referred to in paragraph 153 of the present judgment.","paragraph_id":"para_521"},{"text":"185","paragraph_id":"para_522"},{"text":"In paragraph 175 of the judgment under appeal, the General Court stated that, in essence, the Commission took that figure as the relevant percentage to be applied in order to determine the contestable share and compared it with the required share shown in Table 22 for each quarter concerned.","paragraph_id":"para_523"},{"text":"186","paragraph_id":"para_524"},{"text":"The final column of that table, to which paragraph 175 of the judgment under appeal also refers, shows that, for the period from the fourth quarter of the 2003 tax year to the fourth quarter of the 2006 tax year, the required share was between 4.9%, which is the value calculated for the first quarte …","paragraph_id":"para_525"},{"text":"187","paragraph_id":"para_526"},{"text":"After rejecting, in paragraphs 189 to 201 of the judgment under appeal, Intel’s arguments complaining that the Commission had infringed the principle of legal certainty by taking into account the 2004 spreadsheet, the General Court examined, in paragraphs 202 to 256 of that judgment, Intel’s arguments concerning the assessment of the contestable share as 7.1%.","paragraph_id":"para_527"},{"text":"188","paragraph_id":"para_528"},{"text":"In that regard, it is apparent from paragraphs 203 and 240 of the judgment under appeal that Intel disputed the contestable share of 7.1% used by the Commission, relying, in the first place, on evidence other than the 2004 spreadsheet and, in the second place, on data relating to the actual switch of Dell’s requirements to AMD in 2006 and in 2007, which, in its submission, demonstrated that Dell’s contestable share could be greater than 7.1%.","paragraph_id":"para_529"},{"text":"189","paragraph_id":"para_530"},{"text":"In the first place, the evidence on which Intel relied comprises, as is apparent from paragraphs 204 to 206, 215 and 220 of the judgment under appeal, the D 1 email, the D 5 email, the statements made by Dell executives in private litigation between Intel and AMD in the State of Delaware and the I1 declaration, referred to in paragraphs 147 to 151 of the present judgment.","paragraph_id":"para_531"},{"text":"190","paragraph_id":"para_532"},{"text":"The General Court analysed that evidence in paragraphs 213 to 232 of the judgment under appeal. In paragraph 233 of that judgment, the General Court held that it is apparent from the D 1 email and the D 5 email, the statements made by Dell executives in private litigation between Intel and AMD in th …","paragraph_id":"para_533"},{"text":"191","paragraph_id":"para_534"},{"text":"In those circumstances, the General Court held, in paragraph 234 of the judgment under appeal, that the evidence relied on by Intel cast doubt on the argument that Dell’s contestable share had to be assessed solely on the basis of the 2004 spreadsheet which mentioned a 7% volume switch of Dell’s requirements to AMD for 2005, from which the Commission had inferred a contestable share of 7.1%.","paragraph_id":"para_535"},{"text":"192","paragraph_id":"para_536"},{"text":"In the second place, the General Court observed, in paragraph 243 of the judgment under appeal, that the Commission had expressly acknowledged, in recital 1245 of the decision at issue, that it was possible to calculate a contestable share of more than 7.1%, being between 8.2% and 10.1%, on the basis of observations drawn from the actual switch of part of Dell’s requirements to AMD in 2006 and in 2007.","paragraph_id":"para_537"},{"text":"193","paragraph_id":"para_538"},{"text":"In that context, the General Court noted, first, in paragraph 244 of the judgment under appeal, that the very existence of those estimates was sufficient to demonstrate that the assumption of a 7.1% contestable share was not the only conceivable assumption and cast doubt on the substance of the assessment made by the Commission in the decision at issue.","paragraph_id":"para_539"},{"text":"194","paragraph_id":"para_540"},{"text":"Second, in paragraphs 246 to 251 of the judgment under appeal, the General Court rejected the Commission’s arguments that the switch of Dell supplies to AMD in 2006 and in 2007 was of only limited bearing when assessing the situation during the infringement period, that it was necessary at the very …","paragraph_id":"para_541"},{"text":"195","paragraph_id":"para_542"},{"text":"In that context, the General Court held, in paragraph 254 of the judgment under appeal, that it was apparent from the decision at issue that it was possible to determine a contestable share for Dell of between 8.2% and 10.1% on the basis of evidence other than the 2004 spreadsheet. Thus, the General …","paragraph_id":"para_543"},{"text":"196","paragraph_id":"para_544"},{"text":"In paragraph 255 of the judgment under appeal, the General Court held that that finding and the finding made in paragraph 234 of that judgment, which concerns the assessment of the contestable share on the basis of evidence, relied on by Intel, other than the 2004 spreadsheet, when taken together, supported the existence of doubt as to the assessment of that contestable share in the decision at issue.","paragraph_id":"para_545"},{"text":"197","paragraph_id":"para_546"},{"text":"In the light of those findings, the General Court held, in paragraph 256 of the judgment under appeal, that the evidence put forward by Intel was capable of giving rise to doubt in the mind of the General Court as to whether the contestable share for Dell had to be set at 7.1%. Consequently, according to the General Court, the Commission had not demonstrated to the requisite legal standard that the assessment of that contestable share was well founded.","paragraph_id":"para_547"},{"text":"198","paragraph_id":"para_548"},{"text":"Moreover, in paragraphs 257 to 271 of the judgment under appeal, the General Court examined, for the sake of completeness, the substance of the Commission’s analysis of Dell’s contestable share as regards the initial part of the relevant period, between December 2002 and October 2003. In that regard …","paragraph_id":"para_549"},{"text":"199","paragraph_id":"para_550"},{"text":"After analysing the arguments put forward by the Commission in that regard, the General Court held, in paragraphs 270 and 271 of the judgment under appeal, that the Commission had not been able to explain or validate, a posteriori, the difference between the positive results for Intel, set out in Table 22 for the first four quarters of the infringement period, and its conclusion, adopted for the whole of that period, that Intel had not passed the AEC test.","paragraph_id":"para_551"},{"text":"200","paragraph_id":"para_552"},{"text":"The General Court’s final considerations on the AEC test in respect of the contested rebates granted to Dell are set out in paragraphs 283 to 287 of the judgment under appeal, the content of which is reproduced in paragraphs 48 to 51 of the present judgment.","paragraph_id":"para_553"},{"text":"201","paragraph_id":"para_554"},{"text":"In that regard, it should be noted that, as the Commission also submits, as carried out in the present case, the AEC test is an econometric model fed with input values making it possible, first, to calculate the required share and, second, to establish the contestable share. In calculating the requi …","paragraph_id":"para_555"},{"text":"202","paragraph_id":"para_556"},{"text":"Thus, the result of the AEC test is liable to indicate whether a pricing practice, such as loyalty rebates, adopted by an undertaking in a dominant position, with sufficiently pronounced characteristics in terms of the share of the market covered, the conditions and arrangements for granting those r …","paragraph_id":"para_557"},{"text":"203","paragraph_id":"para_558"},{"text":"With regard to Dell, the positive or negative result of the AEC test depends, as is apparent from paragraphs 183 to 186 of the present judgment, on a comparison of two rates, that of the contestable share and that of the required share, expressed to the first decimal place. In order to calculate those rates, the Commission relies on assumptions that require a set of several figures to be taken into account.","paragraph_id":"para_559"},{"text":"204","paragraph_id":"para_560"},{"text":"It follows that, as the Commission again submits, it is not sufficient for the undertaking in a dominant position to call into question the accuracy of one of the calculations made in the AEC test in order to invalidate the Commission’s conclusion, based on such a test, relating to the capability of …","paragraph_id":"para_561"},{"text":"205","paragraph_id":"para_562"},{"text":"In that regard, it is apparent from paragraphs 213 to 256 and 283 of the judgment under appeal that the General Court did not base its considerations relating to the AEC test with regard to the contested rebates granted to Dell on a doubt affecting a non-decisive part of the Commission’s assessment …","paragraph_id":"para_563"},{"text":"206","paragraph_id":"para_564"},{"text":"The Commission cannot draw a valid argument to the contrary merely from the wording of paragraphs 244 and 254 of the judgment under appeal, according to which the existence of estimates in the decision at issue relating to the actual switch of part of Dell’s requirements to AMD in 2006 and in 2007 ‘ …","paragraph_id":"para_565"},{"text":"207","paragraph_id":"para_566"},{"text":"It is apparent from the wording of those paragraphs of the judgment under appeal, read in the light of paragraphs 242 and 243 of that judgment, that the General Court intended to emphasise that a contestable share greater not only than 7.1% but also than the required share was conceivable even on th …","paragraph_id":"para_567"},{"text":"208","paragraph_id":"para_568"},{"text":"It follows that the General Court did not disregard the nature of the AEC test as an econometric model for assessing the capability of the contested rebates to foreclose a competitor as efficient as the dominant undertaking, so that the first part of the third ground of appeal must be rejected.","paragraph_id":"para_569"},{"text":"The second part, alleging misapplication of the standard of proof laid down","paragraph_id":"para_570"},{"text":"–  Arguments of the parties","paragraph_id":"para_571"},{"text":"209","paragraph_id":"para_572"},{"text":"In the alternative, the Commission submits that the General Court misapplied the standard of proof which it itself laid down in paragraph 166 of the judgment under appeal. In particular, as the General Court held in paragraph 217 of that judgment, the 2004 spreadsheet, on which the Commission relied …","paragraph_id":"para_573"},{"text":"210","paragraph_id":"para_574"},{"text":"Intel disputes the merits of this part of the third ground of appeal.","paragraph_id":"para_575"},{"text":"–  Findings of the Court","paragraph_id":"para_576"},{"text":"211","paragraph_id":"para_577"},{"text":"In paragraph 166 of the judgment under appeal, the General Court observed, in essence, that when an undertaking in a dominant position raises the possibility that a circumstance arose which might affect the probative value of the evidence relied on by the Commission, it is for that undertaking to pr …","paragraph_id":"para_578"},{"text":"212","paragraph_id":"para_579"},{"text":"In that regard, it should be noted that the findings in paragraphs 217 and 218 of the judgment under appeal are a response to Intel’s argument, set out in paragraph 215 of that judgment, that (i) the documents on which Intel relied were drafted by senior Dell executives; (ii) D 1 had confirmed, unde …","paragraph_id":"para_580"},{"text":"213","paragraph_id":"para_581"},{"text":"In paragraph 216 of the judgment under appeal, the General Court responded, to that particular argument, that answers given on behalf of an undertaking, such as the answer given by Dell during the administrative procedure, in which it had produced the 2004 spreadsheet, carry more weight than the ans …","paragraph_id":"para_582"},{"text":"214","paragraph_id":"para_583"},{"text":"However, first, that general rule does not affect the Commission’s obligation to take into account all the relevant evidence in assessing whether an infringement of Article 102 TFEU may have been demonstrated to the requisite legal standard. That assessment is all the more necessary given that, as t …","paragraph_id":"para_584"},{"text":"215","paragraph_id":"para_585"},{"text":"Second, it is apparent from the detailed examination of the evidence carried out by the General Court in paragraphs 220 to 256 of the judgment under appeal that it did not attribute to the evidence on which Intel relied greater evidential value than that of the 2004 spreadsheet, but that it consider …","paragraph_id":"para_586"},{"text":"216","paragraph_id":"para_587"},{"text":"It follows that the Commission’s line of argument alleging that the General Court disregarded the standard of proof that it laid down is based on a partial reading of the judgment under appeal.","paragraph_id":"para_588"},{"text":"217","paragraph_id":"para_589"},{"text":"The second part of the third ground of appeal must therefore be rejected.","paragraph_id":"para_590"},{"text":"The third part, alleging distortion of the evidence in the examination of the AEC test in relation to Dell and infringement of the Commission’s rights of defence","paragraph_id":"para_591"},{"text":"–  Arguments of the parties","paragraph_id":"para_592"},{"text":"218","paragraph_id":"para_593"},{"text":"In the further alternative, the Commission submits that the General Court distorted the evidence, based its decision on contradictory reasoning and infringed the Commission’s rights of defence.","paragraph_id":"para_594"},{"text":"219","paragraph_id":"para_595"},{"text":"In particular, according to the Commission, the finding in paragraph 239 of the judgment under appeal, according to which there remained a doubt as to the definitive percentage of the contestable share for Dell and, more particularly, as to that percentage having to be set at 7.1%, is vitiated by a …","paragraph_id":"para_596"},{"text":"220","paragraph_id":"para_597"},{"text":"As regards the first two documents, the Commission submits that, by inferring, in paragraph 233 of the judgment under appeal, a contestable share of up to 25% of Dell’s requirements, the General Court conflated the requirements that Dell could manage to cover with AMD at the end of a period of one y …","paragraph_id":"para_598"},{"text":"221","paragraph_id":"para_599"},{"text":"As regards the third document, namely the I1 declaration, prepared for the purposes of the investigation and intended to exonerate Intel from any liability, the General Court characterised, in paragraph 227 of the judgment under appeal, its evidential value as poor, but then sought, in paragraph 230 …","paragraph_id":"para_600"},{"text":"222","paragraph_id":"para_601"},{"text":"Moreover, in finding, in paragraph 247 of the judgment under appeal, that the Commission had used, for the purpose of assessing the contestable share, observations deduced from the partial switch of Dell’s requirements to AMD in 2006 and in 2007, the General Court distorted the decision at issue. Th …","paragraph_id":"para_602"},{"text":"223","paragraph_id":"para_603"},{"text":"Moreover, contrary to the General Court’s finding in paragraph 263 of the judgment under appeal, no contradiction can be found between what is apparent, on the one hand, from recital 1256 of the decision at issue, according to which, in at least four quarters of the infringement period, Intel passed …","paragraph_id":"para_604"},{"text":"224","paragraph_id":"para_605"},{"text":"Similarly, the finding in paragraph 268 of the judgment under appeal, to the effect that the Commission did not take account of contestable shares of 17.3%, 22.5% and 24.2%, which are also apparent from the 2004 spreadsheet, is based on a distortion of recital 1212 of the decision at issue. The perc …","paragraph_id":"para_606"},{"text":"225","paragraph_id":"para_607"},{"text":"According to the Commission, that distortion of the decision at issue vitiates the General Court’s finding, in paragraph 270 of the judgment under appeal, that the Commission’s arguments did not make it possible to explain or validate, a posteriori, the difference between the results indicated by the Commission for the first four quarters of the infringement period in Table 22 and its conclusion, adopted for the whole of that period, that Intel did not pass the AEC test.","paragraph_id":"para_608"},{"text":"226","paragraph_id":"para_609"},{"text":"Last, the Commission submits that the General Court should have taken into account the economic analyses submitted by the Commission during the proceedings, which sought to show that, even if it were necessary to calculate the contestable share on the basis of the documents referred to in paragraph …","paragraph_id":"para_610"},{"text":"227","paragraph_id":"para_611"},{"text":"Intel disputes the merits of this part of the third ground of appeal.","paragraph_id":"para_612"},{"text":"–  Findings of the Court","paragraph_id":"para_613"},{"text":"228","paragraph_id":"para_614"},{"text":"Given the exceptional nature of a complaint of distortion of the evidence, the appellant must, pursuant to Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicat …","paragraph_id":"para_615"},{"text":"229","paragraph_id":"para_616"},{"text":"While a distortion of the evidence may therefore consist in an interpretation of a document contrary to its content, it is not sufficient, in order to establish such a distortion, to show that that document could have been interpreted differently from the interpretation adopted by the General Court. …","paragraph_id":"para_617"},{"text":"230","paragraph_id":"para_618"},{"text":"It should be recalled that the passages of the judgment under appeal relating to the AEC test applied to Dell consist of a section concerning the assessment of the contestable share (paragraphs 171 to 271 of the judgment under appeal), a section concerning an alternative calculation applied by the C …","paragraph_id":"para_619"},{"text":"231","paragraph_id":"para_620"},{"text":"The section relating to the assessment of Dell’s contestable share is divided into three subsections. The first subsection, which includes paragraphs 189 to 201 of the judgment under appeal, concerns Intel’s arguments based on the principle of legal certainty, which the General Court rejected. The s …","paragraph_id":"para_621"},{"text":"232","paragraph_id":"para_622"},{"text":"As regards the section concerning the alternative calculation applied by the Commission, the General Court concluded, in paragraph 276 of the judgment under appeal, that it did not demonstrate that Intel’s rebate practices were capable of having a foreclosure effect throughout the infringement period.","paragraph_id":"para_623"},{"text":"233","paragraph_id":"para_624"},{"text":"As regards the section concerning the reinforcing factors, the General Court held, in paragraph 282 of the judgment under appeal, that those factors had been included in the decision at issue as elements which were capable of reinforcing the principal assessment regarding the existence of a foreclos …","paragraph_id":"para_625"},{"text":"234","paragraph_id":"para_626"},{"text":"The arguments put forward by the Commission in support of the complaint alleging distortion of the evidence relate to the last two subsections of the section of the judgment under appeal concerning the assessment of Dell’s contestable share and to the reinforcing factors (see paragraphs 231 and 233 of the present judgment).","paragraph_id":"para_627"},{"text":"235","paragraph_id":"para_628"},{"text":"In that regard, as is apparent from paragraphs 203 and 240 of the judgment under appeal, the General Court examined in two stages Intel’s line of argument challenging the contestable share of 7.1% found by the Commission in relation to Dell. In the first place, in paragraphs 203 to 239 of that judgm …","paragraph_id":"para_629"},{"text":"236","paragraph_id":"para_630"},{"text":"In that context, first, the Commission’s argument that the General Court distorted the D 1 email or the D 5 email by conflating a volume switch of Dell’s requirements to AMD at the end of a period of one year with Dell’s contestable share is based on a misreading of the judgment under appeal. It is …","paragraph_id":"para_631"},{"text":"237","paragraph_id":"para_632"},{"text":"Second, as regards the Commission’s line of argument relating to the I1 declaration, it is apparent from paragraph 233 of the judgment under appeal that that declaration was only one of the four items of evidence relied on by the General Court to find, in the same paragraph, that the switch of Dell’ …","paragraph_id":"para_633"},{"text":"238","paragraph_id":"para_634"},{"text":"As regards, third, the arguments by which the Commission claims that the General Court’s findings set out in paragraphs 247 to 251 of the judgment under appeal, concerning the taking into account of the data from the actual switch of part of Dell’s requirements to AMD in 2006 and in 2007, that is to say, after the infringement period, which ended in December 2005, are vitiated by a distortion of the decision at issue, the following should be noted.","paragraph_id":"para_635"},{"text":"239","paragraph_id":"para_636"},{"text":"In paragraphs 247 and 248 of the judgment under appeal, the General Court observed that the Commission could not rely on the relevance of the information deduced from the partial switch of Dell’s requirements to AMD in 2006 and in 2007 to contradict Intel’s argument relating to the starting point fo …","paragraph_id":"para_637"},{"text":"240","paragraph_id":"para_638"},{"text":"In addition, in paragraph 249 of the judgment under appeal, the General Court rejected the Commission’s argument, set out in its supplementary observations on the referral of the case back to the General Court, according to which the relevance of the actual switch of part of Dell’s requirements to A …","paragraph_id":"para_639"},{"text":"241","paragraph_id":"para_640"},{"text":"In paragraph 250 of the judgment under appeal, the General Court refers to another argument that the Commission put forward in its supplementary observations on the referral of the case back to the General Court, according to which the AEC test had ‘incorporated’ AMD’s actual market shares in Dell’s …","paragraph_id":"para_641"},{"text":"242","paragraph_id":"para_642"},{"text":"It follows from those considerations that the General Court correctly distinguished between the data in the AEC test relating to the infringement period and the data relating to the post-infringement period, which did not form part of that test. Thus, the General Court examined, in response to Intel …","paragraph_id":"para_643"},{"text":"243","paragraph_id":"para_644"},{"text":"Furthermore, the Commission’s arguments that the General Court infringed its rights of defence by refusing, in paragraphs 236 and 253 of the judgment under appeal, to take into account the additional analyses, referred to in paragraphs 235 and 252 of that judgment, produced by the Commission for the …","paragraph_id":"para_645"},{"text":"244","paragraph_id":"para_646"},{"text":"In the light of the assessments set out in paragraphs 235 to 243 of the present judgment, the Commission’s arguments relating to the assessment carried out by the General Court, for the sake of completeness, in paragraphs 257 to 271 of the judgment under appeal, concerning the analysis of Dell’s con …","paragraph_id":"para_647"},{"text":"245","paragraph_id":"para_648"},{"text":"Last, the Commission’s argument that the General Court erred in law by requiring the reinforcing factors relied on by the Commission in order to demonstrate the capability of the contested rebates to foreclose a competitor as efficient as Intel to be quantified is based on a misreading of paragraphs …","paragraph_id":"para_649"},{"text":"246","paragraph_id":"para_650"},{"text":"It follows that the third part must be rejected, as must the third ground of appeal in its entirety.","paragraph_id":"para_651"},{"text":"The fourth ground of appeal, alleging several errors of law and infringement of the Commission’s rights of defence in the examination of the AEC test in relation to HP","paragraph_id":"para_652"},{"text":"247","paragraph_id":"para_653"},{"text":"The fourth ground of appeal comprises two parts.","paragraph_id":"para_654"},{"text":"The first part, alleging errors of law in the examination of the AEC test in relation to HP","paragraph_id":"para_655"},{"text":"–  Arguments of the parties","paragraph_id":"para_656"},{"text":"248","paragraph_id":"para_657"},{"text":"According to the Commission, the General Court made errors of law that vitiate the judgment under appeal by holding, in paragraphs 319 and 335 of the judgment under appeal, that the calculation of HP’s required share did not permit the inference that the contested rebates granted to HP were capable of foreclosing competition for the period from 1 November 2002 to 30 September 2003.","paragraph_id":"para_658"},{"text":"249","paragraph_id":"para_659"},{"text":"In that regard, first, the Commission claims that the General Court applied an incorrect standard of proof which, as regards the AEC test relating to HP, rendered paragraphs 292 to 320 of the judgment under appeal unlawful. Thus, the General Court erred in law in finding, in paragraph 335 of the jud …","paragraph_id":"para_660"},{"text":"250","paragraph_id":"para_661"},{"text":"In particular, the General Court did not dispute that the decision at issue also provided the required share for the period from November 2002 to September 2003. However, in paragraphs 304 and 305 of the judgment under appeal, the General Court took issue with the fact that, in order to determine th …","paragraph_id":"para_662"},{"text":"251","paragraph_id":"para_663"},{"text":"The General Court therefore took issue with the Commission’s choice of an economic parameter, in the present case the reference period chosen to calculate the required share. That economic parameter is not an issue of fact, but an aspect of a complex economic assessment in respect of which the Commi …","paragraph_id":"para_664"},{"text":"252","paragraph_id":"para_665"},{"text":"Moreover, the Commission’s choice of methodology to determine that reference period is based on implicit reasoning that stems from the fact that Table 35 of the decision at issue presents the required share as covering the entire duration of the HPA 1 agreement and from the fact that, as stated in r …","paragraph_id":"para_666"},{"text":"253","paragraph_id":"para_667"},{"text":"Second, the Commission submits that the General Court erred in law by refusing to take into account the fact that Intel had not challenged, during the administrative procedure, the periods used by the Commission for its calculations in the statement of objections and, moreover, that Intel had even used those periods for its own calculations, which it submitted to the Commission during that procedure.","paragraph_id":"para_668"},{"text":"254","paragraph_id":"para_669"},{"text":"Third, according to the Commission, even if the General Court’s finding that the Commission had not demonstrated any anticompetitive foreclosure effect during the period between November 2002 and September 2003 were well founded, that would not justify finding, as the General Court did in paragraph …","paragraph_id":"para_670"},{"text":"255","paragraph_id":"para_671"},{"text":"Fourth, the Commission submits that, in concluding in paragraph 334 of the judgment under appeal that the decision at issue failed to provide reasons, to the requisite legal standard, as regards the reinforcing factors, the General Court necessarily referred to both reinforcing factors taken into ac …","paragraph_id":"para_672"},{"text":"256","paragraph_id":"para_673"},{"text":"Intel disputes the merits of the Commission’s arguments.","paragraph_id":"para_674"},{"text":"–  Findings of the Court","paragraph_id":"para_675"},{"text":"257","paragraph_id":"para_676"},{"text":"The General Court set out the factual background relating to the contested rebates granted to HP in paragraphs 288 and 289 of the judgment under appeal. It is apparent from those paragraphs that Intel had concluded with HP, for the period from November 2002 to May 2005, two successive agreements on …","paragraph_id":"para_677"},{"text":"258","paragraph_id":"para_678"},{"text":"According to paragraphs 298, 299, 303 and 321 of the judgment under appeal, that conclusion is based, on the one hand, on a comparison of the contestable share and the required share and, on the other, on two reinforcing factors. Those factors consist, first, of the Commission’s use of figures that …","paragraph_id":"para_679"},{"text":"259","paragraph_id":"para_680"},{"text":"It follows from paragraph 299 of the judgment under appeal that, according to the decision at issue, the Commission had established HP’s contestable share at 7%.","paragraph_id":"para_681"},{"text":"260","paragraph_id":"para_682"},{"text":"The requisite share, for its part, is shown in Table 34, which is found in recital 1334 of the decision at issue (‘Table 34’), to which paragraph 303 of the judgment under appeal refers. The final column of that table shows that, for the period from the third quarter of the 2003 tax year to the thir …","paragraph_id":"para_683"},{"text":"261","paragraph_id":"para_684"},{"text":"In addition, Table 35, which is found in recital 1337 of the decision at issue, to which paragraph 292 of the judgment under appeal refers, shows, according to that recital, the robustness of the Commission’s conclusion and is presented in such a way as to suggest that it encompasses the entire period covered by the HPA 1 agreement. That table shows a required share of 10.6% for the period covered by the HPA 1 agreement.","paragraph_id":"para_685"},{"text":"262","paragraph_id":"para_686"},{"text":"It is apparent from paragraph 291 of the judgment under appeal that Intel claimed that the Commission made, inter alia, four errors concerning (i) the contestable share; (ii) the amount of the conditional portion of the contested rebates; (iii) the infringement period examined; and (iv) the reinforcing factors taken into consideration. The General Court focused its analysis on the errors alleged in the third place and in the fourth place.","paragraph_id":"para_687"},{"text":"263","paragraph_id":"para_688"},{"text":"As regards the infringement period examined, the General Court observed, in paragraph 303 of the judgment under appeal, that Table 34 covered the period from the fourth quarter of the 2003 tax year to the third quarter of the 2005 tax year, with the result that it did not incorporate any data relating to the months of November and December 2002 or the first three quarters of the 2003 tax year.","paragraph_id":"para_689"},{"text":"264","paragraph_id":"para_690"},{"text":"Similarly, in paragraph 304 of the judgment under appeal, the General Court noted that the figures for the HPA 1 agreement found in the first line of Table 35 are derived from the arithmetic sum or average of the figures in the first three lines of Table 34. The General Court set out the details und …","paragraph_id":"para_691"},{"text":"265","paragraph_id":"para_692"},{"text":"In those circumstances, the General Court held, in paragraph 307 of the judgment under appeal, that the months of November and December 2002 and the first three quarters of the 2003 tax year had not actually been taken into account by the Commission in the calculations which gave rise to the figures …","paragraph_id":"para_693"},{"text":"266","paragraph_id":"para_694"},{"text":"In paragraphs 308 to 320 of the judgment under appeal, the General Court rejected the arguments that the Commission had based, first, on the fact that the result of a quarterly calculation does not differ fundamentally from the result of the overall calculation which is alleged to have been made and, second, on references to an annex to the defence and an annex to the rejoinder.","paragraph_id":"para_695"},{"text":"267","paragraph_id":"para_696"},{"text":"As regards the Commission’s arguments alleging that the AEC test involves complex economic assessments in respect of which the Commission enjoys discretion that the General Court should not have infringed, it should be borne in mind that the Commission carried out an AEC test in order to demonstrate that the contested rebates were capable of foreclosing a competitor as efficient as Intel.","paragraph_id":"para_697"},{"text":"268","paragraph_id":"para_698"},{"text":"As the Advocate General states, in essence, in points 83 to 85 of her Opinion, the calculation of the required share involves methodological choices that the Commission must make in such a way as to ensure that its conclusions are based on all the factually accurate, reliable and consistent informat …","paragraph_id":"para_699"},{"text":"269","paragraph_id":"para_700"},{"text":"First, the Commission does not claim that the findings of fact made by the General Court, which fall within its unappealable assessment, to the effect that Table 34, which concerns the calculation of the required share, does not cover the period up to the beginning of the fourth quarter of the 2004 …","paragraph_id":"para_701"},{"text":"270","paragraph_id":"para_702"},{"text":"Second, as the Advocate General states, in essence, in points 91 and 92 of her Opinion, even though the use of the mechanism of extrapolation is not a choice that is prohibited in principle, in so far as that mechanism is intended to infer the unknown from data that is known, it must be based on a concrete logical pattern, defined and made explicit by the party bearing the burden of proof, in the present case the Commission.","paragraph_id":"para_703"},{"text":"271","paragraph_id":"para_704"},{"text":"The Commission does not claim, nor is it apparent from the judgment under appeal, that it relied before the General Court on the representativeness of the data relating to the period after the third quarter of the 2003 tax year in order to justify extrapolating those data to the part of the infringe …","paragraph_id":"para_705"},{"text":"272","paragraph_id":"para_706"},{"text":"Third, in paragraph 318 of the judgment under appeal, the General Court examined, for the sake of completeness, the calculations produced by the Commission as an annex to the rejoinder to demonstrate that the results relating to HP’s required share would have been the same for the missing two months …","paragraph_id":"para_707"},{"text":"273","paragraph_id":"para_708"},{"text":"As regards the Commission’s argument that Intel had not disputed, during the administrative procedure, the periods used by it for its calculations, it must be borne in mind that the Commission is required to assess, inter alia, the possible existence of a strategy aiming to exclude, through the gran …","paragraph_id":"para_709"},{"text":"274","paragraph_id":"para_710"},{"text":"It follows that the Commission is entitled to base its assessment on the same premisses and evidence as those submitted by the undertaking concerned, just as it may carry out its own analyses on the basis of other evidence obtained during its investigation.","paragraph_id":"para_711"},{"text":"275","paragraph_id":"para_712"},{"text":"However, the fact that Intel submitted, during the administrative procedure, calculations which, even if based on the reference periods used by the Commission, show, according to Intel, that the contested rebates were not capable of foreclosing a competitor as efficient as it is clearly distinguisha …","paragraph_id":"para_713"},{"text":"276","paragraph_id":"para_714"},{"text":"In that context, it should be borne in mind that, as is already apparent from paragraph 163 of the present judgment, and as the General Court correctly pointed out in paragraph 300 of the judgment under appeal, there is no requirement under the law of the European Union that the addressee of the sta …","paragraph_id":"para_715"},{"text":"277","paragraph_id":"para_716"},{"text":"Thus, since Intel submitted, during the administrative procedure, on the basis of supporting evidence, that its conduct had not been capable of restricting competition with regard to HP, thereby triggering the Commission’s obligation to assess the possible existence of a strategy aiming to exclude c …","paragraph_id":"para_717"},{"text":"278","paragraph_id":"para_718"},{"text":"The Commission’s argument that the General Court erred in law in finding that the gap in the AEC test relating to the part of the infringement period that lasted until the end of the third quarter of the 2003 tax year vitiated the analysis relating to the entire infringement period, which ran from N …","paragraph_id":"para_719"},{"text":"279","paragraph_id":"para_720"},{"text":"It follows that, contrary to what the Commission claims, the General Court did not base the annulment of the decision at issue with regard to the contested rebates granted to HP on the gap affecting only part of the infringement period.","paragraph_id":"para_721"},{"text":"280","paragraph_id":"para_722"},{"text":"The Commission’s argument that the General Court examined only the reinforcing factor of the risk of the contested rebates initially intended for HP being transferred to another competitor of HP, excluding the factor of the Commission’s use of figures that were favourable to Intel, must also be reje …","paragraph_id":"para_723"},{"text":"281","paragraph_id":"para_724"},{"text":"As regards the Commission’s argument that the General Court in fact required it to go beyond an assessment of the capability of the contested rebates to foreclose a competitor as efficient as Intel and to quantify the foreclosure effects produced by a reinforcing factor, it is apparent from paragrap …","paragraph_id":"para_725"},{"text":"282","paragraph_id":"para_726"},{"text":"In that regard, in paragraph 330 of the judgment under appeal, the General Court noted that the argument put forward by the Commission at the hearing, according to which HP refused AMD’s offer to provide it with one million x86 CPUs free of charge solely because of the consequences that acceptance w …","paragraph_id":"para_727"},{"text":"283","paragraph_id":"para_728"},{"text":"In that context, it is apparent from a combined reading of paragraphs 321, 334 and 335 of the judgment under appeal that the General Court examined whether recitals 1390 to 1395 of the decision at issue, which deal with the reinforcing factors, contained grounds that made it possible to make up for the lack of evidence underlying the calculation of HP’s required share for the two months and the three quarters for which the AEC test had proved deficient.","paragraph_id":"para_729"},{"text":"284","paragraph_id":"para_730"},{"text":"In that regard, it must be borne in mind that the capability of the contested rebates to foreclose a competitor as efficient as Intel was assessed by means of a comparison, carried out as part of the AEC test, of HP’s required share and its contestable share. That comparison is based, in turn, on a …","paragraph_id":"para_731"},{"text":"285","paragraph_id":"para_732"},{"text":"Consequently, as the General Court states in paragraphs 328 and 329 of the judgment under appeal, if the Commission intended to rely on the possible transfer of the contested rebates granted to HP to one of its competitors in order to establish the capability of those rebates to foreclose a competit …","paragraph_id":"para_733"},{"text":"286","paragraph_id":"para_734"},{"text":"The General Court’s analysis would be no less well founded if, as the Commission submits in support of this part of the fourth ground of appeal, recital 1285 of the decision at issue were to be understood as meaning that the parameters for calculating the required share with regard to HP preclude ta …","paragraph_id":"para_735"},{"text":"287","paragraph_id":"para_736"},{"text":"It follows that, contrary to what is claimed by the Commission, the General Court did not implicitly require it to go beyond an assessment of the capability of the contested rebates to foreclose a competitor as efficient as Intel or to quantify the foreclosure effects. The General Court merely held …","paragraph_id":"para_737"},{"text":"288","paragraph_id":"para_738"},{"text":"In the light of the foregoing, the first part of the fourth ground of appeal must be rejected.","paragraph_id":"para_739"},{"text":"The second part, alleging infringement of the Commission’s rights of defence in the examination of the AEC test in relation to HP","paragraph_id":"para_740"},{"text":"–  Arguments of the parties","paragraph_id":"para_741"},{"text":"289","paragraph_id":"para_742"},{"text":"The Commission states that, in paragraphs 316 and 317 of the judgment under appeal, the General Court refused to take into consideration certain evidence produced in the course of the proceedings. That evidence shows that, even if Intel’s new argument concerning the reference period for the AEC test …","paragraph_id":"para_743"},{"text":"290","paragraph_id":"para_744"},{"text":"Intel disputes the merits of this part of the fourth ground of appeal.","paragraph_id":"para_745"},{"text":"–  Findings of the Court","paragraph_id":"para_746"},{"text":"291","paragraph_id":"para_747"},{"text":"It should be noted that, since, in the light of the arguments and evidence produced by Intel during the administrative procedure, the Commission was required to examine whether that undertaking had implemented a strategy aiming to exclude competitors that were at least as efficient as it from the market, it was for the Commission to demonstrate, in the decision at issue, that the strategy in question had such a capability.","paragraph_id":"para_748"},{"text":"292","paragraph_id":"para_749"},{"text":"In the present case, it is apparent from paragraphs 316 and 317 of the judgment under appeal that the Commission relied before the General Court on an additional calculation covering the second and third quarters of the 2003 tax year for the first time in a document produced as an annex to the rejoinder.","paragraph_id":"para_750"},{"text":"293","paragraph_id":"para_751"},{"text":"As stated in paragraph 163 of the present judgment, the General Court did not err in refusing to take account of those additional calculations produced by the Commission for the first time as an annex to the rejoinder, all the more so since the Commission does not claim to have justified their late submission at first instance, as required by Article 85(2) of the Rules of Procedure of the General Court.","paragraph_id":"para_752"},{"text":"294","paragraph_id":"para_753"},{"text":"It follows that the second part of the fourth ground of appeal and, with it, that ground of appeal in its entirety must be rejected as unfounded.","paragraph_id":"para_754"},{"text":"The fifth ground of appeal, alleging misinterpretation of the AEC test and of Article 102 TFEU, distortion of the evidence and infringement of the Commission’s rights of defence in the examination of the AEC test in relation to Lenovo","paragraph_id":"para_755"},{"text":"Arguments of the parties","paragraph_id":"para_756"},{"text":"295","paragraph_id":"para_757"},{"text":"The Commission recalls that the General Court, in its examination of the AEC test in so far as it relates to Lenovo, focused on the value of two non-cash advantages that Lenovo enjoyed as rebates in return for exclusive supply from Intel, for the loss of which a competitor as efficient as Intel woul …","paragraph_id":"para_758"},{"text":"296","paragraph_id":"para_759"},{"text":"Moreover, first, in paragraph 454 of the judgment under appeal, the General Court did not classify the errors of assessment found in the preceding paragraphs of that judgment as ‘manifest’. According to the Commission, in view of the methodological choices required by an AEC test, only ‘manifest’ errors of assessment could lead to the annulment of a decision based on such a test.","paragraph_id":"para_760"},{"text":"297","paragraph_id":"para_761"},{"text":"Second, by relying on all the costs incurred by Intel, including those incurred in making a supply hub available to Lenovo, and not only on those relating to the production of CPUs, the General Court overlooked the fact that the ultimate issue to be resolved under Article 102 TFEU is whether there i …","paragraph_id":"para_762"},{"text":"298","paragraph_id":"para_763"},{"text":"Thus, it is not the cost of the contested rebates for the dominant undertaking that should be taken into account, but the benefit that those rebates represent for the undertaking that receives them, namely the customer of that dominant undertaking. That approach, which would ensure that the dominant …","paragraph_id":"para_764"},{"text":"299","paragraph_id":"para_765"},{"text":"In any event, according to the Commission, the General Court incorrectly rejected, in paragraph 438 of the judgment under appeal, the approach adopted by the Commission in the decision at issue, according to which a competitor of Intel would not have available a supply hub such as that made available to Lenovo and that, as a result, it would have had to offer Lenovo compensation for the loss of that non-cash advantage.","paragraph_id":"para_766"},{"text":"300","paragraph_id":"para_767"},{"text":"As regards the extension of the standard warranty, the Commission submits that the General Court disregarded the fact that Intel would continue to sell to Lenovo a far larger non-contestable share than the contestable share sold by the competitor. Assuming that the failure rate of x86 CPUs during th …","paragraph_id":"para_768"},{"text":"301","paragraph_id":"para_769"},{"text":"In the alternative, the Commission submits that the General Court infringed the Commission’s rights of defence by refusing to examine the evidence to rebut Intel’s claims that the Commission submitted in the course of the proceedings as Annex D.39 to the rejoinder. To the extent that the General Cou …","paragraph_id":"para_770"},{"text":"302","paragraph_id":"para_771"},{"text":"Intel disputes the merits of the fifth ground of appeal.","paragraph_id":"para_772"},{"text":"Findings of the Court","paragraph_id":"para_773"},{"text":"303","paragraph_id":"para_774"},{"text":"In paragraph 98 of the judgment under appeal, the General Court noted that Intel and Lenovo had concluded a declaration of intent, the 2007 Memorandum of Understanding (‘the 2007 MoU’), which was subject to an unwritten exclusivity condition. In paragraph 415 of that judgment, the General Court refe …","paragraph_id":"para_775"},{"text":"304","paragraph_id":"para_776"},{"text":"In paragraph 417 of the judgment under appeal, the General Court referred to recital 1463 of the decision at issue, which sets out Intel’s argument that only a value of USD 138 million was relevant for assessing the amount of those rebates. Thus, it is explained, in paragraph 417 of that judgment, t …","paragraph_id":"para_777"},{"text":"305","paragraph_id":"para_778"},{"text":"In paragraphs 420 and 421 of the judgment under appeal, the General Court states that, in recitals 1466 and 1467 of the decision at issue, the Commission, first, rejected the latter argument made by Intel on the ground that the AEC test required an examination of the price at which a competitor whic …","paragraph_id":"para_779"},{"text":"306","paragraph_id":"para_780"},{"text":"In paragraphs 433 to 439 of the judgment under appeal, the General Court found that the method used by the Commission to assess the extent of the contested rebates granted to Lenovo was based on an assumption that was contrary to the foundation of the AEC test, as set out in recitals 1003 and 1004 of the decision at issue.","paragraph_id":"para_781"},{"text":"307","paragraph_id":"para_782"},{"text":"In that regard, in paragraph 434 of the judgment under appeal, the General Court pointed out that, according to recital 1003 of the decision at issue, the purpose of the AEC test is to examine whether Intel itself, in view of its own costs and the effect of the contested rebates, would be able to en …","paragraph_id":"para_783"},{"text":"308","paragraph_id":"para_784"},{"text":"It should also be borne in mind that, as the General Court stated in paragraphs 154, 157 and 158 of the judgment under appeal, reproduced in paragraph 43 of the present judgment, the AEC test, as applied in the present case, establishes the ‘effective price’, namely the price at which a competitor a …","paragraph_id":"para_785"},{"text":"309","paragraph_id":"para_786"},{"text":"In that regard, it is apparent from paragraph 412 of the judgment under appeal, which refers to recitals 1457 to 1508 of the decision at issue, that the extent and nature of the contested rebates granted to Lenovo are factors taken into account when calculating the required share. When those rebates …","paragraph_id":"para_787"},{"text":"310","paragraph_id":"para_788"},{"text":"It should be noted, in that context, that it is true that a competitor as efficient as Intel must offer its products at a price that compensates for the loss of the conditional benefits granted by the dominant undertaking. However, that compensation does not necessarily have to take the form of a ca …","paragraph_id":"para_789"},{"text":"311","paragraph_id":"para_790"},{"text":"Consequently, it is necessary, in accordance with the principles of the AEC test, to assess a rebate granted in the form of a non-cash advantage by taking into account a hypothetical competitor with a cost structure similar to that of the undertaking in a dominant position (see, to that effect, judg …","paragraph_id":"para_791"},{"text":"312","paragraph_id":"para_792"},{"text":"Such an approach is all the more justified because, as the General Court correctly pointed out in paragraph 190 of the judgment under appeal, it is also consistent with the general principle of legal certainty. The account taken of the costs of the dominant undertaking enables that undertaking, in t …","paragraph_id":"para_793"},{"text":"313","paragraph_id":"para_794"},{"text":"That being so, it cannot be ruled out, as the Advocate General states in points 160 and 165 of her Opinion, that the cost of the non-cash advantage may require a certain adjustment to allow account to be taken of the fact that the as-efficient competitor does not hold a dominant position. Such an ad …","paragraph_id":"para_795"},{"text":"314","paragraph_id":"para_796"},{"text":"It follows, as the Advocate General observes in point 155 of that Opinion, that, in finding, in paragraphs 437 and 438 of the judgment under appeal, that the Commission’s reasoning was not conducted on the basis of a hypothetical competitor being capable of selling x86 CPUs to Lenovo while also offe …","paragraph_id":"para_797"},{"text":"315","paragraph_id":"para_798"},{"text":"As the General Court observes, moreover, in paragraph 441 of the judgment under appeal, without being challenged by the Commission in the appeal, the decision at issue provides no response to the question of what the cost would have been for a competitor as efficient as Intel if it had had to provide access to a supply hub or simply modify its own existing hub so as to extend it to an OEM, as Intel offered to Lenovo, or what the costs of a warranty extension would have been.","paragraph_id":"para_799"},{"text":"316","paragraph_id":"para_800"},{"text":"It is apparent from paragraph 428 of the judgment under appeal that the Commission presented such an analysis for the first time in Annex D.39 to the rejoinder. However, that analysis goes beyond the limits defined by the statement of reasons for the decision at issue, so that, as it stated in paragraphs 443 and 444 of the judgment under appeal, the General Court cannot take it into account.","paragraph_id":"para_801"},{"text":"317","paragraph_id":"para_802"},{"text":"In that regard, the complaint raised by the Commission in the alternative, alleging infringement of its rights of defence (see paragraph 301 of the present judgment), must be rejected for the reasons set out in paragraphs 164 to 167 of that judgment, from which it follows that the General Court did …","paragraph_id":"para_803"},{"text":"318","paragraph_id":"para_804"},{"text":"Moreover, in paragraph 448 of the judgment under appeal, the General Court examined, for the sake of completeness, the analysis contained in Annex D.39 to the rejoinder and rejected it on the ground that the costs incurred, according to the Commission, by a competitor as efficient as Intel having a …","paragraph_id":"para_805"},{"text":"319","paragraph_id":"para_806"},{"text":"Similarly, the Commission’s argument that, in paragraph 452 of the judgment under appeal, in which the General Court examined the evidential value of the document entitled ‘Intel chart entitled 2006 vs. 2007 Trend’, produced by the Commission for the first time as Annex D.41 to the rejoinder, the Ge …","paragraph_id":"para_807"},{"text":"320","paragraph_id":"para_808"},{"text":"As is apparent from the words ‘In any event’ at the beginning of paragraph 451 of the judgment under appeal, the General Court examined the evidential value of that document for the sake of completeness. The Commission does not dispute the General Court’s principal finding in paragraph 450 of that judgment that the information in that document was not mentioned in the decision at issue. In those circumstances, the Commission’s argument is ineffective.","paragraph_id":"para_809"},{"text":"321","paragraph_id":"para_810"},{"text":"It follows from the foregoing considerations that the fifth ground of appeal must be rejected.","paragraph_id":"para_811"},{"text":"The sixth ground of appeal, alleging an incorrect assessment of the consequences to be drawn from the errors found in the AEC test","paragraph_id":"para_812"},{"text":"Arguments of the parties","paragraph_id":"para_813"},{"text":"322","paragraph_id":"para_814"},{"text":"The Commission raises the sixth ground of appeal in the alternative, should the Court of Justice reject the other grounds of appeal. In that context, the Commission submits that the General Court erred in law as regards the consequences to be drawn, first, from the errors found in the AEC test and, second, from the concept of a competitor as efficient as Intel as derived from the judgment on the appeal.","paragraph_id":"para_815"},{"text":"323","paragraph_id":"para_816"},{"text":"[As rectified by order of 20 November 2024] In particular, first, the Commission submits that the finding of errors vitiating the AEC test does not mean that Intel passed that test and that the contested rebates were not capable of foreclosing competition, but only that the Commission did not prove, …","paragraph_id":"para_817"},{"text":"324","paragraph_id":"para_818"},{"text":"According to the Commission, the General Court therefore distorted the argument put forward by it in its observations on the referral of the case back to the General Court by holding in paragraphs 518 and 519 of the judgment under appeal that the sole reference to the period during which Intel imple …","paragraph_id":"para_819"},{"text":"325","paragraph_id":"para_820"},{"text":"It follows that the General Court’s conclusion, set out in paragraphs 526 and 527 of the judgment under appeal, that the Commission had not established that the contested rebates and the payments at issue were capable of having or likely to have anticompetitive foreclosure effects is vitiated by an …","paragraph_id":"para_821"},{"text":"326","paragraph_id":"para_822"},{"text":"Second, the Commission submits that that conclusion disregards the fact that the concept of an ‘as-efficient competitor’ is not based solely on considerations relating to prices and costs. In that regard, it is apparent from paragraph 139 of the judgment on the appeal that the question whether the c …","paragraph_id":"para_823"},{"text":"327","paragraph_id":"para_824"},{"text":"Intel disputes the merits of that line of argument.","paragraph_id":"para_825"},{"text":"Findings of the Court","paragraph_id":"para_826"},{"text":"328","paragraph_id":"para_827"},{"text":"In the first place, it must be borne in mind that it is for the Commission to prove the infringements of the competition rules which it has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the constituent elements of an infringement (see, to that …","paragraph_id":"para_828"},{"text":"329","paragraph_id":"para_829"},{"text":"Those constituent elements must be apparent from the statement of reasons for the measure finding the infringement, since the Courts of the European Union cannot, as noted in paragraphs 138 and 163 of the present judgment, alter them by substituting, in the context of the review of legality referred to in Article 263 TFEU, their own reasoning for that of the author of the measure in question.","paragraph_id":"para_830"},{"text":"330","paragraph_id":"para_831"},{"text":"In the second place, it follows from paragraphs 175 to 181 of the present judgment that, although the grant of loyalty rebates by an undertaking in a dominant position may constitute an infringement of Article 102 TFEU, the fact that that undertaking submits, during the administrative procedure, on …","paragraph_id":"para_832"},{"text":"331","paragraph_id":"para_833"},{"text":"In that situation, since the demonstration of the actual or potential effect of restricting competition must be assessed in the light of all the relevant factual circumstances, the Commission is required to analyse, as the Court of Justice emphasised in paragraph 139 of the judgment on the appeal, n …","paragraph_id":"para_834"},{"text":"332","paragraph_id":"para_835"},{"text":"It is on the basis of that analysis that the Commission must, in that case, fulfil its obligation, described in paragraphs 328 and 329 of the present judgment, to establish, in the statement of reasons for the decision adopted following its investigation, that the conduct complained of amounts to an abuse of a dominant position within the meaning of Article 102 TFEU.","paragraph_id":"para_836"},{"text":"333","paragraph_id":"para_837"},{"text":"In the third place, it follows from paragraphs 142, 143, 147 and 149 of the judgment on the appeal and, in particular, from paragraphs 30, 31, 152 to 158, 175, 283, 285, 286, 297 to 299, 339, 412, 413, 457 and 466 to 468 of the judgment under appeal that it is by means of the AEC test, which seeks t …","paragraph_id":"para_838"},{"text":"334","paragraph_id":"para_839"},{"text":"As is apparent, moreover, from paragraphs 147 and 149 of the judgment on the appeal, it is with regard to the fact that the Commission had carried out an AEC test that the Court of Justice referred the case back to the General Court, so that the General Court could examine whether the contested reba …","paragraph_id":"para_840"},{"text":"335","paragraph_id":"para_841"},{"text":"In that context, it follows from paragraph 157 of the judgment under appeal that the Commission took into account, for the purposes of the AEC test, Intel’s average avoidable cost. It is common ground that the Commission relied on that cost benchmark on the ground that, in view of the more favourabl …","paragraph_id":"para_842"},{"text":"336","paragraph_id":"para_843"},{"text":"In the fourth place, it is apparent from paragraphs 485, 493 to 495, 509 and 510 of the judgment under appeal that the Commission devoted a number of recitals of the decision at issue to the analysis of the share of the market covered by the contested rebates and of their duration and that, among th …","paragraph_id":"para_844"},{"text":"337","paragraph_id":"para_845"},{"text":"It is in those circumstances that, as stated in paragraphs 80 to 82 of the present judgment, the General Court found, in paragraphs 524 to 527 of the judgment under appeal, that the errors which it had identified in the AEC test, the share of the market covered by the contested rebates and the duration of their application justified the annulment of Article 1(a) to (e) of the decision at issue.","paragraph_id":"para_846"},{"text":"338","paragraph_id":"para_847"},{"text":"In the light of the foregoing considerations, it was not for the General Court to examine, before annulling the decision at issue in part, whether the contested rebates were capable of foreclosing a competitor as efficient as Intel by relying, for the purposes of that examination, on factors different from those on which the Commission had relied in order to establish that capability.","paragraph_id":"para_848"},{"text":"339","paragraph_id":"para_849"},{"text":"In particular, it was not for the General Court to examine whether that capability could be established by means of reasoning that did not contain the errors found by it, in so far as such reasoning is not set out in the decision at issue in a coherent way from which it may be inferred that it may support the operative part of that decision irrespective of the grounds vitiated by errors of law or of fact that render the Commission’s findings invalid.","paragraph_id":"para_850"},{"text":"340","paragraph_id":"para_851"},{"text":"In that regard, first, it is apparent from paragraphs 133 to 147 of the judgment under appeal that the analysis carried out in the decision at issue, intended to demonstrate that the contested rebates constitute an abuse irrespective of the conclusions drawn by the Commission from the AEC test, is v …","paragraph_id":"para_852"},{"text":"341","paragraph_id":"para_853"},{"text":"In those circumstances, the General Court did not err in law in holding, in paragraphs 518 and 519 of the judgment under appeal, that the sole reference, notwithstanding the conclusions that may be drawn from the AEC test, to the period during which Intel implemented the contested rebates and to the …","paragraph_id":"para_854"},{"text":"342","paragraph_id":"para_855"},{"text":"Moreover, the Commission’s argument that the General Court failed to take account of the fact that AMD is an ‘efficient’ competitor, as defined by the judgment on the appeal, because its products are high-performance, innovative and attractive, is also irrelevant.","paragraph_id":"para_856"},{"text":"343","paragraph_id":"para_857"},{"text":"As is apparent from paragraph 435 of the judgment under appeal, the AEC test is a hypothetical exercise that makes it possible to determine whether a competitor which is as efficient as Intel, in terms of producing and delivering x86 CPUs that provide the same value to customers as Intel, but which …","paragraph_id":"para_858"},{"text":"344","paragraph_id":"para_859"},{"text":"It follows from the foregoing that the sixth ground of appeal must be rejected and, consequently, that the appeal must be dismissed in its entirety.","paragraph_id":"para_860"},{"text":"Costs","paragraph_id":"para_861"},{"text":"345","paragraph_id":"para_862"},{"text":"In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.","paragraph_id":"para_863"},{"text":"346","paragraph_id":"para_864"},{"text":"Under Article 138(1) of those rules of procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.","paragraph_id":"para_865"},{"text":"347","paragraph_id":"para_866"},{"text":"Since Intel and ACT have applied for costs to be awarded against the Commission and the Commission has been unsuccessful, it must be ordered to pay the costs.","paragraph_id":"para_867"},{"text":"348","paragraph_id":"para_868"},{"text":"Pursuant to Article 140(1) of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings by virtue of Article 184(1) thereof, the Member States and institutions which have intervened in the proceedings are to bear their own costs.","paragraph_id":"para_869"},{"text":"349","paragraph_id":"para_870"},{"text":"Since Intel and ACT have applied for costs to be awarded against the Federal Republic of Germany, the latter must bear its own costs and pay those incurred by Intel and ACT in connection with the intervention.","paragraph_id":"para_871"},{"text":"On those grounds, the Court (Fifth Chamber) hereby:","paragraph_id":"para_872"},{"text":"1.","paragraph_id":"para_873"},{"text":"Dismisses the appeal;","paragraph_id":"para_874"},{"text":"2.","paragraph_id":"para_875"},{"text":"Orders the European Commission to bear its own costs and to pay those incurred by Intel Corporation Inc. and by Association for Competitive Technology Inc.;","paragraph_id":"para_876"},{"text":"3.","paragraph_id":"para_877"},{"text":"Orders the Federal Republic of Germany to bear its own costs and to pay those incurred by Intel Corporation Inc. and by Association for Competitive Technology Inc. in connection with the intervention.","paragraph_id":"para_878"},{"text":"Jarukaitis","paragraph_id":"para_879"},{"text":"Gratsias","paragraph_id":"para_880"},{"text":"Regan","paragraph_id":"para_881"},{"text":"Delivered in open court in Luxembourg on 24 October 2024.","paragraph_id":"para_882"},{"text":"A. Calot Escobar","paragraph_id":"para_883"},{"text":"Registrar","paragraph_id":"para_884"},{"text":"K. 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