EU Law Blog

Antitrust Fines, Due Process and the ECHR

Over at the highly recommended ECHR Blog, there's an excellent post on EU antitrust fines and ECHR fair trial rights.

The author of the post, Felix Ronkes Agerbeek, is an eminent lawyer, who works in the Commission's presitigious legal service, and who marshals his arguments very carefully.

He makes a telling point: The case law of the European Court of Human Rights on Article 6 of the ECHR is unclear and imprecise when it comes to transposing it to the Commission's antitrust procedure. He draws the following general conclusion:

"One thing is clear, though. The simple fact that Article 6[ECHR] applies does not prevent the adoption of sanctions by an administrative body. On the contrary, according to the case-law it is perfectly acceptable that certain sanctions are imposed by way of an administrative decision."

There's no doubt that he's right about that. But the procedure used by the Commission's DG Competition may need a few modifications all the same. For example, the European Court of Human Right's judgment in Dubus SA v. France may require a reorganization of that department in order to separate the investigative and adjudicative roles currently exercised by the same people. We'll see what the General Court makes of that judgment in the case pending before it in Case T-56/09 Saint Gobain Glass France and Others v. Commission.

For our post on the Dubus case see here.

And as a commentator pointed out on the ECHR Blog, the General Court's caselaw on ne bis in idem may need revisiting in the light of the European Court of Human Right's recent judgment in Sergey Zolotukhin v. Russia. As it happens, the Court of Justice itself has the opportunity to do just that and to align the EU case law with that of the European Court of Human Rights in the pending case C-17/10 Toshiba Coroporation and others v. v Úřad pro ochranu hospodářské soutěže. Again, we'll have to wait and see what happens.

We're very grateful to Mr. Ronkes Agerbeek for having started an interesting and worthwhile debate in blogosphere with such a thoughtful and interesting post.

Vertical Restrictions : New Block Exemption

The Commission has finally adopted its new regulation - Regulation 330/2010 - block exempting under Article 101 §3 TFEU certain distribution arrangements and other vertical restrictions.

The new Regulation provides that manufacturers, in order to benefit from the block exemption, cannot have a market share in excess of 30% and their distribution or supply agreements must not contain any so-called "hardcore restrictions of competition", such as fixing the resale price or re-creating barriers to the EU single market. The new rules introduce the same 30% market share threshold for distributors and retailers to take into account the fact that some buyers may also have market power with potentially negative effects on competition. The Commission claims that that change is beneficial to small and medium-sized enterprises (SME's), whether manufacturers or retailers, which could otherwise be excluded from the distribution market.

Distribution agreements made between companies with a higher market share than 30% are in principle caught by the prohibition contained in Article 101 §3 TFEU and are thus illegal unless they can be exempted individually pursuant to Article 101 §3 TFEU.

The Regulation is supplemented by new Commission Guidelines which sort of explain the Regulation. In fact, the Guidelines are a form of covert legislation without respecting the legislative process. For example, the Guidelines deal with the issue of on-line sales and state that distributors must be free to sell on their websites as they do in their shops and outlets. For selective distribution, this means that manufacturers cannot limit the quantities sold over the Internet or charge higher prices for products to be sold online. The Guidelines deal with the concepts of "active" and "passive" sales for exclusive distribution: Terminating transactions or re-routing consumers after they have entered their credit card details showing a foreign address will not be accepted. In that way, the Commission has pre-empted the Court of Justice's ruling in the pending case C-439/09 Pierre Fabre Dermo-Cosmétique

The new Regulation enters into force on June 1st 2010 and replaces Regulation 2790/1999 which expires on May 31st 2010.

Antitrust Proceedings: Transparency and Predictability

We're back !

It seems it is slowly beginning to dawn on the Commission that there is something wrong with its antitrust proceedings: Lack of due process; No independent review of the evidence; Confusion between decision-making and investigative powers and so on.

One major complaint is the general fickleness of the procedure.

The Commission seeks to remedy some problems by increasing awareness of how its current procedures actually work and inviting comments. To that end it has published a series of documents describing its "Best Practices" in antitrust proceedings and setting out guidance on the role of the Hearing Officers.

The Commission concedes that it may need to amend its procedures in the following respect:

- earlier open formal proceedings earlier, as soon as the initial assessment phase has been concluded;

- offer "state of play" meetings to the parties at key points of the proceedings

- disclose key submissions, including giving early access to the complaint, so that parties can already express their views in the investigative phase

- announce publicly the opening and closure of procedures, as well as when Statement of Objections have been sent

- give guidance on how the new instrument of commitment procedures is used in practice.

The Commission has also published guidance on the presentation of economic evidence by the parties so that the evidence submitted can be more useful and germane.

You can find a press release on this here.

Comments from the public are invited by March 3rd 2010.

All very worthy, no doubt, but will the fundamental problems be addressed ?

Intel, the Ombudsman and the Commission's Antitrust Investigation

The European Ombudsman has made public a version of his decision concluding his investigation into misconduct and maladministration by the Commission's DG Competition.

Intel had complained to the European Ombudsman alleging two things. First that the Commission had failed to take minutes of a meeting with a senior Dell executive held on 23 August 2006, even though the meeting directly concerned the subject-matter of the Commission's anti-trust investigation of Intel. Second that the Commission encouraged Dell to enter into an information exchange agreement with micro-chip producer and Intel competitor AMD thus giving AMD access to information contained in the Commission's investigation file.

The Ombudsman did find that the Commission's DG Competition had committed maladministration by failing to take a proper note of that meeting and that its investigation file did not include the agenda of the meeting. That failure did not breach Intel's rights of the defense, however.

As to the second allegation, the Ombudsman did not conclude that the Commission had committed maladministration but did find that the Commission failed to make a proper note of a telephone call between the Commission and Dell, in which the information exchange agreement was discussed. Such a note would have helped to clarify the relevant facts. He thus recommended that the Commission's DG Competition be more professional and rigorous in keeping proper notes of meeting and telephone calls in order to reduce the risk of doctoring the file.

You can find a summary of the Ombudsman's decision here.

Parallel Trade, Pharmaceuticals, Restriction of Competition by Object: Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P

Today’s judgment in Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P GlaxoSmithKline Services Unlimited (“GSK”) v. Commission will keep the antitrust mavens excited for quite a while.

There’s a lot in the judgment and quite some procedural issues arose: Just about everyone appealed and cross-appealed the Court of First Instance’s judgment in Case T-168/01 GlaxoSmithKline Services v. Commission [2006] ECR II-2969 turning the procedure into a bit of a saloon bar brawl.

We’ll just concentrate on one aspect for now: What comprises a restriction of competition by object.

That's a popular subject these days as you can see from our posts here and here.

But first a bit of background. The Court of First Instance in its judgment in Case T-168/01 annulled parts of a Commission decision finding that Glaxo Wellcome SA, a subsidiary of GSK, had infringed Article 81§1 EC by agreeing with Spanish wholesalers operating a distinction between prices charged to wholesalers in the case of domestic resale of reimbursable drugs to pharmacies or hospitals and higher prices charged in the case of exports of medicines to any other member State. The Commission also decided that the arrangement did not qualify for an exemption under Article 81§3 EC. For our posts on that judgment see here and here.

The Court of First Instance had upheld the Commission’s finding the arrangements were prohibited by Article 81 §1 EC but annulled the Commission decision because it considered that the Commission had not carried out a proper examination of GSK’s request for an exemption under Article 81 §3 EC.

Now to the issue of whether the agreement had as its object to restrict competition.

In deciding whether the agreement breached Article 81 §1, the Court of First Instance held, in paragraph 121, that while parallel trade must be given a certain protection, it should be given protection in so far as it favors the development of trade, on the one hand, and the strengthening of competition, on the other hand and thus in so far as it gives final consumers the advantages of effective competition in terms of supply or price. Consequently, held the Court of First Instance, while it is accepted that an agreement intended to limit parallel trade must in principle be considered to have as its object the restriction of competition, that applies in so far as the agreement may be presumed to deprive final consumers of those advantages.

Notwithstanding that qualification, the Court of First Instance held that the arrangements were in fact caught by Article 81 §1 EC because they had the effect of restricting competition.

On appeal, the Court of Justice took exception to that statement of the Court of First Instance.

As regards the Court of First Instance’s statement that, while it is accepted that an agreement intended to limit parallel trade must in principle be considered to have as its object the restriction of competition, that applies in so far as it may be presumed to deprive final consumers of the advantages of effective competition in terms of supply or price, the Court of Justice held that neither the wording of Article 81 §1 EC nor the case-law lend support to such a position.

It stated firstly that there is nothing in Article 81 §1 EC to indicate that only those agreements which deprive consumers of certain advantages may have an anti-competitive object. Secondly the Court recalled that, like other antitrust rules in the Treaty, Article 81 EC aims to protect not only the interests of competitors or of consumers, but also the structure of the market and, in so doing, competition as such. Consequently, for a finding that an agreement has an anti-competitive object, it is not necessary that final consumers be deprived of the advantages of effective competition in terms of supply or price (by analogy, Case C-8/08 T-Mobile Netherlands and Others [2009] ECR I0000 paragraphs 38 and 39 - see our post on that case here).

It follows according to the Court of Justice that, by requiring proof that the agreement entails disadvantages for final consumers as a prerequisite for a finding of anti-competitive object and by not finding that that agreement had such an object, the Court of First Instance committed an error of law.

Nevertheless, the Court of Justice did not overturn the judgment of the Court of First Instance. It held that where the grounds of a judgment of the Court of First Instance are contrary to EC law, that judgment need not be set aside if the operative part of the judgment appears to be well founded on other legal grounds (Case C-30/91 P Lestelle v. Commission [1992] ECR I-3755, paragraph 28, and Case C-294/95 P Ojha v. Commission [1996] ECR I-5863, paragraph 52).

That was the case here. In point 2 of the operative part of the judgment under appeal, the Court of First Instance confirmed Article 1 of the contested decision, by which the Commission had found that the agreement infringed Article 81 §1 EC. It was thus unnecessary to set aside point 2 of the operative part of the Court of First Instance’s judgment under appeal.

Concerted Practices, Oligopoly, Restriction by Object: Case C-8/08

Catching up a bit on some judgments handed down before the summer break. The judgment in Case C-8/08 T-Mobile Netherlands BV v. NMa is all about what constitutes a concerted practice according to Article 81 §1 EC.

The story goes like this. There are five licensed mobile phone operators in the Netherlands. It is thus an oligopolistic market. Representatives of the operators met in June 2001 and discussed the reduction of standard dealer remunerations for postpaid subscriptions (where the customer is invoiced for the cost of the minutes of the calls after they are made), which was to take effect in September 2001. Confidential information came up in discussions between the participants at the meeting.

The Dutch Competition Authority, the NMa, took a decision in December 2002 finding that the five operators had entered into a concerted practice prohibited by Dutch law and imposed fines on them. The operators then challenged that decision before the NMa which largely upheld its previous findings, upheld the fines but also found the conduct to be a concerted practice prohibited by Article 81 §1 EC. The operators then challenged that new decision before the competent Dutch court.

The Dutch court had a few doubts about the case and referred three questions to the Court of Justice on the proper interpretation of Article 81 §1 EC.

First, the national court asked which criteria must be applied when assessing whether a concerted practice has as its object the prevention, restriction or distortion of competition within the common market.

The Court of Justice answered that a concerted practice pursues an anticompetitive object for the purpose of Article 81 §1 EC where, according to its content and objectives and having regard to its legal and economic context, it is capable in an individual case of resulting in the prevention, restriction or distortion of competition within the EC. It is not necessary for there to be actual prevention, restriction or distortion of competition or a direct link between the concerted practice and consumer prices. An exchange of information between competitors is tainted with an anti-competitive object if the exchange is capable of removing uncertainties concerning the intended conduct of the participating undertakings.

The Court gives a kind of crash course on what is a concerted practice. It recalled its standard definition of a “concerted practice” as a form of coordination between undertakings by which, without it having been taken to the stage where an agreement properly so-called has been concluded, practical cooperation between them is knowingly substituted for the risks of competition (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 26, and Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 63 ("Woodpulp").

To determine whether a concerted practice is anticompetitive, close regard, the Court stated, must be paid in particular to the objectives which it is intended to attain and to its economic and legal context (Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others v Commission [1983] ECR 3369, paragraph 25, and Case C-209/07 Beef Industry Development Society and Barry Brothers [2008] ECR I0000, paragraphs 16 and 21 - for our write up on that leading case, see here). While the intention of the parties is not an essential factor in determining whether a concerted practice is restrictive, the Commission or national authorities and courts may take it into account (IAZ International Belgium and Others v Commission, paragraphs 23 to 25).

As to the distinction between concerted practices having an anti-competitive object and those with anti-competitive effects, it must be borne in mind that an anti-competitive object and anti-competitive effects constitute not cumulative but alternative conditions in determining whether a practice falls within the prohibition in Article 81(1) EC. Since Case 56/65 LTM [1966] ECR 235, 249, it is clear that the alternative nature of that requirement, indicated by the conjunction ‘or’, means that it is necessary, first, to consider the precise purpose of the concerted practice, in the economic context in which it is to be pursued. Where, however, an analysis of the terms of the concerted practice does not reveal the effect on competition to be sufficiently deleterious, its consequences should then be considered and, for it to be caught by the prohibition, it is necessary to find that those factors are present which establish that competition has in fact been prevented or restricted or distorted to an appreciable extent (Beef Industry Development Society and Barry Brothers, paragraph 15).

To decide whether a concerted practice is prohibited by Article 81(1) EC, there is no need to take account of its actual effects once it is apparent that its object is to prevent, restrict or distort competition within the common market (Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, 342; Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I8725, paragraph 125; and Beef Industry Development Society and Barry Brothers, paragraph 16).

The distinction between ‘infringements by object’ and ‘infringements by effect’ arises, according to the Court, from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition (Beef Industry Development Society and Barry Brothers, paragraph 17). Accordingly, there is no need to consider the effects of a concerted practice where its anticompetitive object is established.

In its second question, the national court asked whether, in examining whether there is a causal connection between the concerted practice and the market conduct of the undertakings participating in the practice – a connection which must exist if it is to be established that there is a concerted practice within the meaning of Article 81(1) EC – it is required to apply the presumption of a causal connection established in the Court of Justice's case‑law (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125 and Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, according to which, where they remain active on the market, such undertakings are presumed to take account of the information exchanged with their competitors, or whether that court can apply the rules of national law pertaining to the burden of proof.

The Court recalled that in applying Article 81 EC, any interpretation that is provided by the Court is therefore binding on all the national courts of the member States.

The Court answered that the national court is required, subject to proof to the contrary, which it is for the undertakings concerned to adduce, to apply the presumption of a causal connection established in the Court’s case‑law, according to which, where they remain active on that market, such undertakings are presumed to take account of the information exchanged with their competitors.

Third, the national court asked whether, when applying the concept of concerted practices in Article 81(1) EC, there is in all cases a presumption of a causal connection between the concerted practice and the market conduct of the undertakings concerned, even if the concerted action is the result of a single meeting.

Yes, answered, the Court, a single meeting is enough: In so far as the undertaking participating in the concerted action remains active on the market in question, there is a presumption of a causal connection between the concerted practice and the conduct of the undertaking on that market, even if the concerted action is the result of a meeting held by the participating undertakings on a single occasion.

The Court stated that any other interpretation would be tantamount to a claim that an isolated exchange of information between competitors could not in any case lead to concerted action that is in breach of the EC antitrust rules. Depending on the structure of the market, the possibility cannot be ruled out that a meeting on a single occasion between competitors may, in principle, constitute a sufficient basis for the participating undertakings to concert their market conduct and thus successfully substitute practical cooperation between them for competition and the risks that that entails.

What matters is not so much the number of meetings held between the participating undertakings as whether the meeting or meetings which took place afforded them the opportunity to take account of the information exchanged with their competitors in order to determine their conduct on the market in question and knowingly substitute practical cooperation between them for the risks of competition. Where it can be established that such undertakings successfully concerted with one another and remained active on the market, they may justifiably be called upon to adduce evidence that that concerted action did not have any effect on their conduct on the market in question.

What is refreshing is how such basic issues still come up after so many years ....

European Court of Human Rights and Administrative/Antitrust Proceedings

The European Court of Human Rights has handed down a significant judgment finding that France is in breach of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights because of the manner in which the French Banking Commission investigated and punished infringements of French banking law.

The Court held in its judgment of June 11th 2009 in Dubus S.A. v. France (available in French only) that France breached Article 6 § 1 on account of the lack of independence and impartiality of the disciplinary proceedings brought by the French Banking Commission against the applicant, Dubus S.A., a French investment corporation.

A press release in English is available here.

The Court of Human Rights found that there was no clear distinction between the functions of prosecution, investigation and adjudication in the exercise of the judicial power vested in the French Banking Commission. While the combination of investigative and judicial functions was not, in itself, incompatible with the need for impartiality, this was subject to their being no "prejudgment” on the part of the Banking Commission. The Court stated that there was a need for strict controls, to avoid giving the impression that guilt had been established from the very start of the disciplinary proceedings.

The Court of Human Rights also found that Dubus could reasonably believe that it was prosecuted and tried by the same people, and consequently could entertain doubts about the impartiality of the decision of the Banking Commission, which, in its various capacities, had brought disciplinary proceedings against it, notified it of the offences and imposed the penalty.

Interestingly, the Court of Human Rights also held, en passant, that the penalties in the form of fines were penal in character given the high amounts that could, potentially, be imposed.

Why is this significant ?

Because the procedure used by the European Commission in antitrust cases is rather similar (but not identical) to the one applied by the French Banking Commission.

Also, similar arguments are pending before the Court of First Instance in Case T-56/09 Saint Gobain Glass France and Others v. Commission.

Antitrust Fines, Tax Deductibility, Coöperation between Commission and National Courts: Case C-429/07

The Court of Justice has handed down its first judgment defining the scope of the right of the Commission to intervene in proceedings pending before national courts where the coherent application of the antitrust rules so require.

In its judgment in Case C-429/07 Inspecteur van de Belastigdienst v. X BV, the Court held that the Commission could intervene in domestic proceedings concerning the tax deductibility of a fine that it had imposed on an undertaking in the Netherlands for its involvement in an illicit cartel.

The Commission had imposed fines on a number of companies for participating in the plasterboard cartel in a decision of November 27th 2002. One of the companies concerned, known as X KG of Germany, passed on part of the fine within the group of which it is the parent and in particular to its Dutch subsidiary, X BV. When making its corporation tax returns, X BV tried to deduct the amount of the fines from its profits. The Dutch tax authorities disallowed such a deduction. X BV disputed that disallowance before the Dutch courts.

The Commission then learned of the case and petitioned the Dutch court to intervene as amicus curiae pursuant to Article 15 § 3 of Regulation 1/2003. The Dutch court was unsure whether the Commission could use those powers to intervene in what was essentially a tax case, not an antitrust one, and referred the matter to the Court of Justice.

Coöperation between the Commission and national courts in antitrust matters is governed by Article 15 of Regulation 1/2003 which establishes a system for the mutual exchange of information between the Commission and the courts of the member States, and provides, in specific circumstances, for the possibility of intervention by the Commission and the competition authorities of the member States in proceedings pending before national courts.

The Court engaged in quite a bit of exegesis of Article 15 § 3. It stated that the first and second sentences of the first subparagraph of Article 15 § 3 permit national competition authorities to submit written observations on their own initiative, and, with the permission of the court concerned, oral observations to the national courts of their member State on issues relating to the application of Articles 81 EC or 82 EC. The third and fourth sentences of that provision also permit the Commission to submit written observations on its own initiative, and, with the permission of the court in question, oral observations to national courts where the coherent application of Articles 81 EC or 82 EC so requires.

Consequently, the Court held that the first subparagraph of Article 15 § 3 of Regulation 1/2003 refers to two different types of intervention with separate fields of application: intervention by the national competition authorities before the national courts of their member State on issues relating to the application of Articles 81 EC or 82 EC, and intervention by the Commission before national courts where the coherent application of Articles 81 EC or 82 EC so requires.

It held that the four sentences of that subparagraph, and above all the fact that the second and fourth sentences are almost entirely identical, emphasises the fact that the EC legislature intended to draw a distinction between those two situations, despite the fact that they appear in the same subparagraph.

Consequently, a literal interpretation of the first subparagraph of Article 15 § 3 of Regulation 1/2003 leads to the conclusion that the option for the Commission, acting on its own initiative, to submit written observations to courts of the member States is subject to the sole condition that the coherent application of Articles 81 EC or 82 EC so requires. That condition may be fulfilled even if the proceedings concerned do not pertain to issues relating to the application of Article 81 EC or Article 82 EC.

The Court went on to hold that the coherent application of the rules on competition comprises the penalties that are imposed upon their breach.

The EC establishes, according to the Court, a comprehensive system for monitoring cartels and abuses of dominant positions which sets out a principle of prohibition, contained in Articles 81 EC and 82 EC, and sanctions for its infringement, on the basis of Article 83 EC. Those articles must be understood as forming part of a comprehensive set of provisions designed to prohibit and punish anti‑competitive practices.

The Court found that it is apparent from Article 83 §2 (a) EC that the fines and periodic penalty payments which may be imposed on undertakings in connection with the application of Community competition law are designed to ‘ensure compliance with the prohibitions laid down in Article 81(1) [EC] and in Article 82 [EC]’. The purpose of Article 83 EC is therefore inter alia to ensure the effective supervision of cartels and abuses of dominant positions.

The Commission’s power to impose fines on undertakings which intentionally or negligently breach Articles 81 §1 EC or 82 EC is one of the means conferred on the Commission in order to enable it to carry out the task of supervision entrusted to it by EC law (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 105, and Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 22). As a consequence, it is not possible to dissociate the principle of prohibition of anti‑competitive practices from the penalties provided for.

The effectiveness of the penalties imposed by the national or Community competition authorities on the basis of Article 83 §2 (a) EC is therefore a condition for the coherent application of Articles 81 EC and 82 EC.

The Court concluded that the third sentence of the first subparagraph of Article 15 § 3 of Regulation 1/2003 must be interpreted as meaning that it permits the Commission to submit on its own initiative written observations to a national court of a member State in proceedings relating to the deductibility from taxable profits of the amount of a fine or a part thereof imposed by the Commission for infringement of Articles 81 EC or 82 EC.

Korea - EU Competition Cooperation Agreement

The EU has finally signed an agreement to coöperate with the Republic of Korea on antitrust matters.

It has taken quite a while for the EU to sign it (appeasement of the North, perhaps? Allright, that's just a joke).

The agreement with Korea is similar to those with the United States, Canada and Japan.

The agreement provides for :
-the notification of enforcement activities that may affect the interests of the other jurisdiction
-mutual assistance, including the possibility for one authority to ask the other to undertake enforcement action
-coordination of enforcement activities
-exchange of non-confidential information
-organisation of regular bilateral meetings between the parties' competition authorities.

The Commission's press release is available here. The actual text of the agreement is not made public (Commission's opacity policy oblige).

Intel, Abuse of a Dominant Position and Massive Fine

You've probably read the news already: Intel has been fined €1.06 billion (US $ 1.43 billion) by the Commission for abusing its dominant position in breach of Article 82 EC. That is the largest fine ever imposed by the Commission on a single corporation.

Not much has been made public so far.

There's this press release and this memo giving a minimum of background.

It transpires that the Commission reproaches Intel, apart from being a very successful company for a poll indicating that the fine is unfair, see here), for doing two sorts of things:
- giving its customers illegal loyalty rebates, and
- by paying computer manufacturers and retailers to restrict the commercialisation of competitors' products, which means in practice AMD's products. (For AMD's take on the decision, see here).

It is a pity that the Commission does not think fit to give the reading public more information or even release a version of the decision. Nevertheless, a careful reading of the memo seems to indicate that because the fine represents only 4.15 % of Intel's turnover in 2008 - well below the cap of 10% of annual turnover set in Regulation 1/2003 - it could have been higher still.

Intel has denied breaking the law and announced its intention to seek judicial review.