Intel has asked the European Court of First Instance for an order to annul or reduce the €1.1bn fine imposed by the EC for anti-trust offences.
Intel alleges that the EC infringed the law by: Firstly, finding that Intel's conditional discounts to customers 'foreclosed competition' without establishing that they actually did have that effect and without analysing whether the rebates were implemented within the EU and had effects within the EU.
Secondly, by failing to meet the required standard of proof in its analysis of the evidence. 'The Commission fails to prove that Intel's rebate arrangements were conditional upon its customers purchasing all or almost all of their x86 CPU requirements from Intel.'
In that respect, Intel argues that the EC: fails to address the evidence which shows that during the period of the alleged infringement, one of Intel's competitors substantially increased its market share and its profitability but that its lack of success in certain market segments and/or with certain OEMs was the result of its own shortcomings; fails to establish a causal link between what it finds to be conditional discounts and the decisions of Intel's customers not to purchase from that competitor; fails to analyse the evidence of the impact of Intel's discounts upon consumers.
Thirdly, the applicant argues that the Commission fails to prove that Intel engaged in a long-term strategy to foreclose the competitors. 'Such a finding is not supported by the evidence', says the application.
Intel also says the EC infringed EU procedural rules which would entitle Intel to an oral hearing in relation to the Supplementary Statement of Objections and Letter of Facts ' even though they raised entirely new allegations and referred to new evidence which feature prominently in the contested decision'.
And Intel's application alleges that the EC failed to procure certain internal documents from the competitor for the case file, when requested to do so by the applicant notwithstanding that, in the applicant's opinion, the documents:
(i) were directly relevant to the Commission's allegations against Intel,
(ii) were potentially exculpatory of Intel and
(iii) had been identified by Intel with precision;
Furthermore Intel claims that the EC to make a proper note of its meeting with a key witness (presumably the Dell executive who told the EC that AMD's performance was poor) from one of Intel's customers, 'who was highly likely to have given exculpatory evidence'.
On the size of the fine, Intel says the €1.1bn fine is 'disproportionate' in that the EC failed to establish 'any consumer harm or foreclosure of the competitors', and claims the EC failed to apply fining guidelines correctly and took 'irrelevant or inappropriate considerations' into account in assessing the fine.
Finally, Intel says that the EC's analysis of the 'as efficient competitor' ('AEC') test to determine whether Intel's rebates were capable of restricting competition is based on information that it could not know at the time it was granting discounts to its customers.
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