Intel to appeal against EU’s antitrust fine

Intel Corp., the world’s largest maker of computer chips, will seek to overturn a record European Union (EU) €1.06 billion (Dh4.91 billion) antitrust fine, arguing regulators withheld evidence and failed to give the company the chance to fully defend itself. Intel will ask the EU General Court in Luxembourg at a hearing starting today to throw out the European Commission’s ruling that its use of rebates violated EU antitrust rules. Intel said the EU failed to use mitigating evidence or to allow it respond to all of the allegations. Regulators “care strongly about defending their approach in building the case and their approach to evidence” even more than the “eye-catching” fine, Stephen Kinsella, a lawyer at Sidley Austin LLP in Brussels, said. The fine was levied after Intel rival Advanced Micro Devices (AMD) Inc. complained that the rebates were unfair. Santa Clara, California-based Intel agreed to pay AMD $1.25 billion in 2009 to end a US lawsuit and the company reached a separate settlement with the US Federal Trade Commission. Intel expects 2012 to be a year of “record revenues”, with growth in the mobile-phone market adding to its 80 per cent market share for chips in personal computers. The company believes the EU “erred in its May 2009 decision,” Chuck Mulloy, a company spokesman, said in an email. Errors with the decision Intel’s appeal cites numerous errors with the EU decision, including its failure to make notes of a witness who was “highly likely” to provide evidence supporting Intel’s argument that its rebates to PC makers weren’t conditional on excluding AMD from the market. It also says the EU should have sought documents from AMD that were “potentially exculpatory” and given Intel an additional hearing to defend itself. The competition ruling has already been criticised by the EU’s own ombudsman, who said in 2009 that the antitrust agency was guilty of “maladministration” for failing to record notes of the meeting with Dell Inc. The report wasn’t binding on the commission, which disagreed on the need for formal minutes. The antitrust fine was the EU’s biggest, more than double the €497 million penalty against Microsoft Corp. in 2004. It represented about 4 per cent of Intel’s $37.6 billion in sales in 2008, below the maximum penalty of 10 per cent of yearly sales regulators can impose. Procedural grounds Intel’s chances of getting the fine cut or cancelled “lie more on procedural than on substantive grounds”, putting the focus on Intel’s arguments that regulators didn’t respect basic due process, Alfonso Lamadrid, a lawyer at Garrigues in Brussels, said. Antoine Colombani, a spokesman for the EU regulator, declined to comment on the Intel case ahead of the hearing. The EU’s eight-year investigation found that Intel impeded competition by giving rebates to computer makers from 2002 until 2005 on the condition that they buy at least 95 per cent of chips for PCs from Intel. It said Intel imposed “restrictive conditions” for the remaining 5 per cent, supplied by AMD, which struggled to overcome Intel’s hold on the market for processors that run PCs. The case may be less likely to affect the law on rebates because the EU’s approach on refunds linked to sales volumes has changed since the Intel case, with a greater emphasis on regulators proving that the alleged abusive behaviour has concrete effects on competition. Loyalty reducing “Traditionally, it was sufficient for the commission to show that the rebate had a loyalty-reducing effect to establish a violation of competition rules,” Lamadrid said. “In the Intel case, the commission claimed that negative effects on competition could be shown in the foreseeable future.” The computer makers coaxed to not use AMD’s chips included Acer Inc., Dell, Hewlett-Packard Co., Lenovo Group Ltd. and NEC Corp., the commission said in 2009. The EU also said Intel made payments to electronics retailer Media Markt on the condition that it only sell Intel-based PCs. It also ordered Intel to stop using illegal rebates to thwart competitors, an instruction that Intel complained was unclear. Intel settled an antitrust case with the US Federal Trade Commission in August 2010 and agreed not to give computer makers discounts or other inducements in exchange for promises they will buy chips exclusively from Intel. Sunnyvale, California-based AMD, which initiated the EU antitrust case, is no longer involved and won’t intervene at this week’s hearing after settling with Intel. Decisions by the EU court can be appealed a last time to the European Court of Justice, the 27-nation bloc’s highest court, which is also in Luxembourg. The case is T-286/09 Intel v Commission.