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Procedural errors in a competition case

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  • Case: 1935/2008/FOR
    Opened on 22 Jul 2008 - Decision on 14 Jul 2009
  • Institution(s) concerned: European Commission
  • Field(s) of law: Competition policy
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Lawfulness (incorrect application of substantive and/or procedural rules) [Article 4 ECGAB]
  • Subject matter(s): Institutional and policy matters

Summary of decision on complaint 1935/2008/FOR (confidential) against the European Commission

On 10 July 2008, the Ombudsman received a complaint from Intel. The complaint alleged procedural errors by the Commission during an anti-trust investigation of Intel under Article 82 of the EC Treaty.

According to the complainant, the Commission failed to take minutes of a meeting with Dell it held on 23 August 2006, despite the fact that the meeting directly concerned the subject-matter of the Commission's investigation of Intel.

In his decision dated 14 July 2009, the Ombudsman found that the Commission did gather information relating to the subject-matter of its investigation in the meeting of 23 August 2006. He also found that the Commission did not make a proper note of that meeting and that the Commission's investigation file did not include the agenda of the meeting. The Ombudsman concluded that the Commission had committed an instance of maladministration. The Ombudsman did not, however, make any finding as to whether the Commission had infringed Intel's rights of defence.

In addition, the complainant alleged that the Commission encouraged Dell to enter into an information exchange arrangement with AMD. According to the complainant, the effect of this arrangement was to allow AMD to obtain confidential information about Intel that was contained in the Commission's investigation file. The complainant argued that, in acting this way, the Commission circumvented the rules which limited AMD's right of access to the investigation file.

As regards this second allegation, the Ombudsman considered that it would not have been in accordance with principles of good administration if the Commission had encouraged Dell to enter into such an information exchange agreement with AMD. However, he noted that the Commission had no responsibility, and indeed no power, to prevent such an arrangement.

The Ombudsman found that the possibility of Dell entering into the information exchange agreement was first raised in a telephone call of 30 August 2007 between senior representatives of Dell and senior Commission representatives. However, since the Commission had not made any contemporaneous notes of the content of that telephone call, the available evidence was not sufficient for the Ombudsman to take a position as to whether Dell, or the Commission, had first suggested the agreement. The Ombudsman did not, therefore, make any finding of maladministration as regards the complainant's second allegation. However, the Ombudsman recommended that, in the future, proper internal notes should be made of the content of meetings or telephone calls with third parties concerning important procedural issues.