Intel to use EC slip-up in antitrust defence

A administrative error by the European Commission has given Intel's antitrust defence some ammunition

Intel plans to use a finding of the European Ombudsman in its appeal against a European Commission antitrust fine.

Intel told ZDNet UK on Wednesday that it is likely to use the Ombudsman's finding that the Commission failed to adequately record meetings as part of its defence against the €1.06bn (£951m) Commission-imposed fine.

"We do plan to raise this issue, and others, in our appeal," said an Intel spokesperson.

The European Ombudsman, which adjudicates complaints of maladministration by EU governmental bodies, said in a statement on Wednesday that the European Commission "failed to make a proper note of a meeting with computer manufacturer Dell relating to the Intel investigation".

The Ombudsman found that the Commission had failed to take minutes of the Dell meeting on 23 August, 2006, despite the fact the meeting was concerned with the Commission's Intel investigation. In addition, no record was kept of the agenda of the meeting, said the Ombudsman.

Fergal O'Regan, one of the heads of unit at the Ombudsman's office, told ZDNet UK on Wednesday that Ombudsman decisions are not legally binding, and that it would be up to the European Court of First Instance, which is hearing Intel's appeal, to judge whether the Ombudsman's decision would have any bearing on the case.

"The court is free to look into the account as it sees fit," said O'Regan, who added that it would also be for the Commission to decide whether it would alter its administrative practices.

"We consider it good administrative practice to make a proper record of issues discussed in such meetings," said O'Regan.

The Ombudsman did not make any finding as to whether the Commission had infringed Intel's rights of defence by failing to minute the meeting.

The Commission said in a statement on Wednesday that it disagreed with the Ombudsman's position, and that European case law backed its procedures.

"The Commission does not agree with the Ombudsman's position that a formal agreed minute... should have been prepared," said the statement. "The Commission notes that its practice as regards the August 2006 meeting was fully in line with the case law of the Court of First Instance."

Intel had also complained to the Ombudsman that the Commission had encouraged to Dell to enter into an information-sharing arrangement with AMD, to allow AMD to obtain confidential information about Intel that was contained in the Commission's investigation file. The Ombudsman did not uphold this complaint.

The appeal hearing as yet has no definite timeline, but is likely to be heard by the European Court of First Instance at the end of next year, or the beginning of 2011, a source close to the case told ZDNet UK on Wednesday.