Intel argues EU didn't make the case for 'exclusionary' anti-competitive conduct

In the first public record of the contents of private European Commission hearings last July 22, only now being published (PDF available here), Intel defended itself against the EC's charge that it engaged in exclusionary conduct within the EU's boundaries. According to the official record, Intel argued that the EC failed to meet its own burden of proof -- specifically, the company said the Commission could not prove that Intel's alleged conduct actually did result in reduced competition.

If Intel is only guilty of intent to be anti-competitive, then the formula the EC used to compute its fines against the company of €1.06 billion, may not be applicable.

Evidence Intel points to that the EC overlooked, it alleged, would show that a certain competitor of Intel's (there's only one candidate, and though unnamed, it's AMD) actually increased its market share in the region, during the period that AMD and the EC have alleged that competition was harmed. Furthermore, according to the official record, Intel alleged "the Commission fails...to establish a causal link between what it finds to be conditional discounts and the decisions of Intel's customers not to purchase from that competitor; [as well as] to analyze the evidence of the impact of Intel's discounts upon consumers."

Last July, Intel spokesperson Chuck Mulloy told Betanews that the company also made the case that it was not privy to certain documents that the EC apparently had in its possession, which it used to make its case, because those same documents were being kept under seal in AMD's civil trial against Intel in Delaware. The EC's record makes note of that, apparently adding that Intel knows precisely which documents it can't get a hold of or even reference at the moment, and argues that these documents would completely vindicate the company.

"In the applicant's opinion, the documents: (i) were directly relevant to the Commission's allegations against Intel; (ii) were potentially exculpatory of Intel; and (iii) had been identified by Intel with precision," reads the official record.

Word of the exact nature of Intel's defense comes on the same day we learn that Bruce Sewell, who had been its general counsel and the point man in its antitrust battle against AMD since 2005, has left the company to join Apple as its SVP and general counsel, replacing the retiring Daniel Cooperman. In a statement this morning, Apple CEO Steve Jobs said, "With Bruce's extensive experience in litigation, securities and intellectual property, we expect this to be a seamless transition."

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