EU ombudsman slams Intel antitrust ruling

The European Ombudsman has found maladministration in the way the European Commission handled its antitrust investigation into Intel on the grounds that the Commission failed to make a proper note of a meeting with Dell during the investigation.

The Ombudsman, P. Nikiforos Diamandouros, published his ruling on the complaint alleging procedural errors by the Commission during its anti-trust investigation of the chip maker.

Diamandouros said: “I hope that my decision in this case will help the Commission to improve its administrative procedures by ensuring that its future anti-trust investigations are fully documented.”

Intel submitted its complaint on 10 July 2008. In its first allegation, it claimed that the Commission 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.

The Ombudsman found that the meeting of 23 August 2006 did concern the subject-matter of the Commission investigation. He also found that the Commission did not make a proper note of that meeting and that its investigation file did not include the agenda of the meeting. The Ombudsman concluded that this constituted maladministration. He did not, however, make any finding as to whether the Commission had infringed Intel’s rights of defence.

But the Ombudsman failed to find any maladministration in relation to Intel’s second allegation, that the Commission encouraged Dell to enter into an information exchange agreement with AMD. Intel claimed that this agreement gave AMD access to information contained in the Commission’s investigation file.

The Ombudsman 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 said and recommended that in the future proper notes should be made of any meetings or telephone calls with third parties concerning ‘important procedural issues’.

During the inquiry, the Ombudsman obtained three opinions from the Commission and conducted an inspection of documents at the Commission’s premises. His decision, which was classified as confidential, was sent to the Commission and Intel on 14 July 2009. The preparation of the non-confidential version of the decision required consultation with Intel, Dell and AMD to ensure that publication would not harm the interests of the complainant or of a third party.

Intel subsequently took its complaint to the European Court of First Instance in Luxembourg. This appeal, which carries more legal weight than the Ombudsman’s ruling, is due to be heard early next year.

In a statement on the ruling, Intel said that it welcomed the ombudsman’s decision, saying: “Intel has said that the European Commission ignored evidence that was potentially exculpatory for Intel and that it was selective in its use of other evidence.”

The Ombudsman’s decision is available here.

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