On 18 November 2009, the European Ombudsman published a non-confidential version of his decision confirming that the Commission had committed procedural errors in its investigation of Intel’s alleged breach of Article 82 EC (now Article 102 TFEU).
Intel, a micro-chip producer, claimed that the Commission had failed to take notes during a meeting with a senior executive at Dell and that this impaired Intel's rights of defence. The Ombudsman concluded that the meeting had been relevant to the subject of the investigation and that the Commission had failed to take a note of the meeting or include a copy of the meeting’s agenda in its investigation file. The Ombudsman found the Commission’s omission to constitute maladministration, but did not comment on whether this infringed Intel’s rights of defence.
Intel also alleged that the Commission had encouraged Dell to enter into an information exchange agreement with AMD (another micro-chip producer), in order to allow AMD access to confidential information in the Commission’s investigation file. Although the Ombudsman did not make a finding of maladministration in this respect, he did find that the Commission had failed to make a note of its telephone conversation with Dell regarding the exchange agreement. The Ombudsman advised that the Commission should, in future, take full and proper notes of any meetings and telephone calls where important issues are discussed with third parties.
EO/09/19 – 18 November 2009