On September 22, 2023, the European Commission (“the Commission”) re-adopted parts of its 2009 Intel decision and imposed a fine of €376 million on Intel for abusing its dominance in x86 central processing units (“CPUs”) through naked restrictions. The re-adopted decision follows the General Court’s 2022 renvoi judgment, which overturned the €1.06 billion fine that the Commission had originally imposed on Intel in 2009. It marks the latest—but certainly not the last—development in a saga spanning over 20 years.
Figure 1: Key Milestones
2009: The Commission fines Intel record-breaking €1.06 billion for naked restrictions and conditional rebates. In 2004, the Commission initiated an investigation against Intel following complaints from AMD, Intel’s competitor in the supply of x86 CPUs. In May 2009, the Commission imposed a €1.06 billion fine on Intel for abusing its dominant position in the worldwide market for x86 CPUs, where Intel’s market share was estimated at approximately 70%.
- Naked restrictions. The Commission found that Intel breached Article 102 TFEU by awarding original equipment manufacturers (“OEMs”) payments conditional upon the OEMs delaying, cancelling, or in some other way restricting the marketing of certain AMD-based products.
- Conditional rebates. The Commission also found that Intel had acted unlawfully by offering exclusivity rebates to certain OEMs and one distributor. In fining Intel, the Commissionasserted that exclusivity rebates restricted competition by object and accordingly, did not require an assessment of potential effects. For “completeness”, the Commission nevertheless carried out a 151-page long assessment of the as-efficient competitor test (“AEC test”), which concluded that the discounts were capable of foreclosing equally efficient competitors.
2014: The General Court dismisses Intel’s appeal. Intel appealed before the General Court, arguing that the Commission’s AEC test failed to establish that its rebates were capable of foreclosing as-efficient competitors. The General Court dismissed Intel’s action in its entirety, without reviewing the Commission’s application of the AEC test, citing the standard set in Hoffmann-La Roche in 1979.
2017: The Court of Justice upholds Intel’s appeal – and sends the case back to the General Court. Intel appealed the General Court’s 2014 judgment to the Court of Justice. In this judgment, the Court of Justice set out a comprehensive framework for assessing exclusivity rebates:
- Exclusivity rebates by dominant firms are presumptively but not per se illegal under Article 102 TFEU.
- Where a dominant firm submits evidence that its rebates are not anticompetitive, the Commission must assess their foreclosure effects by considering, at a minimum: (i) the extent of the dominant position; (ii) the share of the market covered by the rebates; (iii) the conditions and arrangements for granting the rebate; (iv) their duration and amount; and (v) the possible existence of a strategy aiming to exclude competitors that are at least as efficient as the dominant firm.
Setting aside the General Court’s 2014 judgment and referring the case back to the General Court, the Court of Justice ruled that the General Court should have examined the Commission’s effects analysis.
2018: The General Court overturns the Commission’s €1.06 billion fine in a renvoi judgment. In a shift in jurisprudence that moves the application of Article 102 TFEU away from formalism and toward a focus on effects, the General Court concluded that the Commission had erred in law by taking the view that exclusivity rebates are by their nature abusive, without considering the effects the rebates had on competition. It ruled that the Commission’s AEC tests carried out for the exclusivity rebates were vitiated by errors. It also concluded that the Commission did not properly assess the market coverage and duration of the exclusivity rebates. The renvoi judgment signalled the General Court’s willingness to scrutinize technical economic assessments that are often heavily contested by companies in competition law investigations.
While the General Court did not challenge the Commission’s 2009 decision in so far as it related to naked restrictions, it annulled the Commission’s original fine of €1.06 billion in its entirety, as neither the Commission nor the General Court could identify the portion of the fine that could be attributed solely to the naked restrictions.
2023: The Commission readopts its decision. On September 22, 2023, the Commission readopted its infringement decision in so far as it concerned the naked restrictions that were not challenged by the General Court in its renvoi judgment. The Commission fined Intel €376 million, just over one-third of its original fine of €1.06 billion.
The Commission makes it clear that its readopted decision for Intel’s naked restrictions is without prejudice to the Commission’s pending appeal against the General Court’s assessment of exclusionary rebates in the renvoi judgment.
It remains to be seen whether the Commission’s pleas against the renvoi judgment—namely that the General Court’s AEC assessment infringed the Commission’s rights of defence and contained errors with respect to standard of proof—will withhold scrutiny on appeal to the Court of Justice.
Regardless of the outcome of that appeal, two questions will remain:
- First, it remains to be seen whether in future cases the Commission might be able to avoid rigorous judicial review by simply not conducting an AEC test. We think this is unlikely. While the principles established by the Court of Justice and the General Court in its renvoi judgment do not require the Commission to take the initiative in conducting an AEC test, the Commission will have to engage with any AEC analysis presented by the defendant. Given the high evidentiary standard established by the General Court in the renvoi judgment, it will be hard for the Commission to rebut the defendant’s assessment without performing an AEC analysis of its own.
Second, there is a question as to what extent the principles established by the Court of Justice and the General Court’s renvoi rulings will apply beyond exclusionary pricing cases. The AEC test is evidently specific to pricing abuses, such as margin squeeze, rebates, and predatory pricing. But both courts formulated more general principles for finding an abuse: restrictive effects cannot be assumed but must be proven; this effects analysis must be done by reference to equally efficient rivals; and proof beyond a reasonable doubt is the relevant legal standard of proof that the Commission must meet. These are universal principles that are equally valid for non-price abuses, including tying, refusal to deal, and abusive discrimination.
 Intel (Case COMP/AT.37990), Commission decision of May 13, 2009.
 Commission Press Release IP/23/4570, “Antitrust: Commission re-imposes €376.36 million fine on Intel for anticompetitive practices in the market for computer chips,” September 22, 2023.
 Intel v Commission, Case T‑286/09, ECLI:EU:T:2014:547.
 At the time, this was the highest fine that the Commission had imposed on a company for breaching Article 102 TFEU. The Commission has since imposed higher fines, most notably in Google Shopping(€2.42 billion) in 2017, Google Android (€4.34 billion) in 2018 (see our European Competition Report, July-September 2018, pp. 2-3) 2018 Q3 European Competition Report), and Google Adsense (€1.49 billion) in 2019 (see ourMarch 2019 EU Competition Law Newsletter).
 Intel v Commission, Case T‑286/09, ECLI:EU:T:2014:547.
 Hoffmann-La Roche v Commission, Case C-85/76 EU:C:1979:36. In Hoffman La Roche, the Court of Justice held that exclusive dealing and loyalty rebates constituted by object infringements, save for extraordinary circumstances in which they may be objectively justified.
 Intel v Commission, Case C-413/14 P, EU:C:2017:632.
 Intel v Commission, Case C-413/14 P, EU:C:2017:632, para. 147.
 Intel v Commission, Case C-413/14 P, EU:C:2017:632, para. 139.
 Intel Corporation Inc v Commission, Case T‑286/09 RENV, EU:T:2022:19.
 In response to the General Court’s question, the Commission argued that it had assessed Intel’s conduct as a whole and had come to the view that the naked restrictions and the exclusivity rebates “[…] complemented and mutually reinforced one another.” See Intel Corporation Inc v Commission, Case T‑286/09 RENV, para. 528.