Its European court petition denied, Intel has three days to defend itself

Since last July, Intel's defense against a Statement of Objections filed by the European Commission has been that it isn't privy to all the evidence. Now, a court has concluded that time to find what that evidence is, has run out.

A last-chance petition by Intel before the European Court of First Instance in Brussels last month, pleading for enough time to gather information it believes may be exculpatory in charges against its anti-competitive conduct against AMD, was turned down this afternoon.

Since July, Intel has won some time to have AMD turn over a handful of documents it claimed to have not yet seen. But then, Intel sought -- according to the Court President's ruling -- to delay the period of time in which it started preparing its response, to the time in which those documents were received. Rather than just say, "No, that wouldn't be fair," the Court President presented an 89-paragraph decision, including some dramatically long sentences, many of which boil down to an implication that Intel is just being paranoid.

"As regards...the claim that Intel suffers harm due to the contested decisions in the main action because it is denied the opportunity to submit arguments that could result in the Commission ending its investigation immediately, thus sparing Intel costs that it will not be able to recover," wrote Marc Coulon and Emmanuel Jaeger on behalf of the Court President, "it must be held that that is mere conjecture and unsubstantiated by evidence. On the contrary, the above shows...that the applicant [Intel] may still submit arguments to demonstrate that there is a need to procure the documents at issue. In addition, if it were apparent that any final decision was vitiated by an infringement of its rights of the defence and the Commission's obligation to examine all relevant information carefully and impartially, Intel could obtain the annulment of the decision and, if the conditions were fulfilled, obtain damages for the harm suffered as a result of the Commission's unlawful conduct."

The Court's contention is that Intel may not need or even want a delay, arguing that its insistence on having every available weapon at its disposal for a defense might only be necessary if it needed to defend itself. And since the EC's objections have not been proven, Intel might not just want to conclude out of hand that the EC will end up ruling against it -- even though the EC was the source of the Statement of Objections. And even if the EC does end up ruling against Intel -- which the Court states is not necessarily likely -- if Intel truly did think it was harmed by the EC's actions, it could make a case for itself before a human rights court.

Literally, a human rights court. In fact, the judges contend, if Intel really wants to wait for the outcome of a Court of First Instance decision -- which they themselves "would be complex and the proceedings would probably take several years" -- the company would deny itself a chance to argue that the EC infringed against it, according to the European Convention on Human Rights. In other words, the statute of limitations on claiming the Commission damaged Intel's reputation unfairly, would elapse before any court could draw a conclusion that Intel could use in its defense.

Given all that, Intel now officially has until "the 30th day from the date of the present order" -- which is Friday morning -- to present its defense. Intel spokesperson Chuck Mulloy this afternoon was cautious before appearing to affirm that date in stone, saying it will first communicate with the European Commission to see what its timetable should be.

For its part, AMD referred us to its legal VP Tom McCoy this afternoon, who stated: "We are not surprised by the Court's decision to reject Intel's application. The Order is entirely consistent with the continuous and clear case law on this issue and Intel's appeal was simply an attempt to delay the Commission's decision making process."

5:20 pm EST January 27, 2009 - Later in the afternoon, Intel's legal department issued a detailed statement that included the following:

While Intel is disappointed with today's ruling on interim measures the decision has no bearing on the merits of this case. Certain AMD documents were made part of the record in the European proceeding and Intel sought to demonstrate that those documents indicated that other highly relevant documents existed. Intel asked the Commission to order AMD to provide those documents and the Commission refused. Intel respectfully disagreed, and asked the Court of First Instance to order that the documents be made available to Intel on an "interim" basis, before any further actions are taken by the Commission.

The statement goes on to note that the Court of First Instance, in its decision rendered earlier today, effectively pointed Intel in a possible alternate legal direction. It states that the European Commission's failure to seek certain exculpatory documents -- which apparently were cited by the US Justice Dept. in its own legal proceedings -- prior to charging Intel with complaints, may be used in Intel's defense in an appeal, should one be necessary.