by Anton Shilov
11/18/2009 | 08:04 PM
The European ombudsman, P. Nikiforos Diamandouros , has published a non-confidential version of his decision on a complaint by Intel Corp. against the European Commission. The complaint concerned alleged procedural errors by the EC during an anti-trust investigation of Intel. But while the ombudsman found some kind of maladministration of investigators in one case, he stressed that such partial incompetence did not cause any fundamental flaws or impacted the final decision.
Intel submitted the complaint on 10 July 2008. In its first allegation, it argued that the EC failed to take record of minutes of a meeting with a senior Dell executive held on 23 August 2006, even though the meeting directly concerned the subject-matter of the commission's anti-trust investigation of Intel.
The Ombudsman found that the meeting of 23 August 2006 did concern the subject-matter of the Commission investigation. He also found that the commission did not make a proper note of that meeting and that its investigation file did not include the agenda of the meeting. The Ombudsman concluded that this constituted maladministration. He did not, however, make any finding as to whether the commission had infringed Intel's rights of defense.
“In his observations, the complainant raised the argument that the Commission's failure to record properly the meeting of 23 August 2006 was evidence of a lack of impartiality. The ombudsman is of the view that, if the Commission were to receive exculpatory information in the course of an investigation, and failed to record that exculpatory information somewhere in the file, this failure would, even if it were not intentional on the part of the Commission's services, constitute an objective factor which might call into question the impartiality of an investigation. […] The ombudsman reaches no conclusion, in the context of the present inquiry,” the decision of the ombudsman reads.
The ombudsman did not make a finding of maladministration in relation to Intel's second allegation, which was that the EC encouraged Dell to enter into an information exchange agreement with micro-chip producer AMD. In the complainant's view, this agreement gave AMD access to information contained in the EC's investigation file. The ombudsman did find, however, that the commission failed to make a proper note of a telephone call between the EC and Dell, in which the information exchange agreement was discussed. Such a note would have helped to clarify the relevant facts. He thus recommended, in a further remark, that, in the future, proper notes should be made of any meetings or telephone calls with third parties concerning important procedural issues.
“I hope that my decision in this case will help the Commission to improve its administrative procedures by ensuring that its future anti-trust investigations are fully documented,” Mr. Diamandouros commented.