So without the opportunity to present even a hint of a defense, how certain can you be that Intel is guilty?
Your premise is false. Intel had several opportunities to present a defense.
They chose not to. Unless you think that their entire case hinged on Intel's unsupported speculation about what was discussed in a single meeting between the EC and a single Dell executive, and for their 11'th hour unspecific request for a broad category of documents.
Do you think Intel was correct to waive their opportunity to present a defense over these matters? For putting all their eggs in a single basket and not having a plan-B defense prepared for the contingency that their demands might not be granted?
Here's another document for you to ignore:
It's the EU Court of 1st Instance (CFI) supporting the Commission's decision to reject Intel's Request for Interim Measures regarding Intel's complaint that "it would be unable to exercise its rights of defence in a meaningful manner."
(Please note that the CFI is the court that Intel's appeal will be addressed by... (i.e. the next one you'll be calling a "kangaroo court" when Intel gets squarshed again))
europa.eu
Exerpts from the CFI's order:
35 As regards the effects of the contested decisions on its legal position, first, Intel submits that they compel Intel to choose between asserting its rights of defence by refusing to reply on the basis of an incomplete file and submitting a reply to the SSO without being able to rely on a significant body of evidence that is likely to be both relevant and exculpatory. In either case, Intel’s legal position would be altered.
36 If Intel refuses to submit a reply, it might forfeit the right to reply to the SSO and to defend itself at an oral hearing. Conversely, if Intel replies without being able to exercise fully its rights of defence, the Commission is more likely to adopt a final, wrong decision establishing that Intel infringed Article 82 EC.
[...]
78 In order to establish that the contested decisions in the main action lack even the appearance of legality, Intel claims, in essence, that the Commission infringed its obligation to be diligent and impartial, in so far as it cited, in the SSO, a large number of Intel documents from the case pending before the United States District Court for the District of Delaware, described as incriminating, but disregarded AMD documents from that case which would [speculatively, according to Intel] be exculpatory, and refused to request the production of those documents.
79 The file shows that, first, the Commission issued a request for further information on 21 May 2008, requesting AMD inter alia to produce all the documents mentioned by Intel in its preliminary pretrial statement, which, according to Intel’s description, is a document designed to focus, frame and define the boundaries of the deposition discovery process. Next, the Commission did not reject Intel’s request that it procure from AMD the documents on the list of AMD documents in its entirety, but granted that request in so far as those documents were specified in a way that allowed them to be precisely identified, and consequently ordered AMD to submit seven documents. Finally, the Hearing Officer, by letter of 13 October 2008, asked Intel to let her know, by the next day, whether the seven documents which Intel received on 8 October 2008 required an extension of the deadline for replying to the SSO, adding that although, on the basis of information available to her, an extension of that deadline was not justified, she would nevertheless examine that question in the light of Intel’s comments on the need for such an extension.
80 Therefore, there is no basis for a finding that the Commission’s conduct was so negligent and biased that the contested decisions in the main action could be considered to be lacking even the appearance of legality and accordingly form the subject of an action for annulment despite their preparatory nature, even if it were acknowledged that such a possibility exists in principle. In this respect, it must moreover be noted that the applicant itself admits in its observations in response to the Commission’s observations, in a manner that is contradictory, that the question whether that conduct was manifestly unlawful cannot be summarily assessed since it is inextricably linked to the facts of the case.
81 It follows from the foregoing that the first head of claim in the main action is prima facie manifestly inadmissible and that the applicant has not been able to provide evidence calling in question that finding.
[...]
87 In this respect, it suffices to note that the applicant was in no way prevented – either by the contested decisions in the main action or by bringing its action for annulment and this application for interim measures – from preparing and submitting, in good time, its reply to the SSO on the basis of the information available to it, at least as a precaution, and that all the more so since the Hearing Officer had granted an extension of the deadline by four weeks.
fpg |
