ORDER OF THE COURT (Fifth Chamber)

20 November 2024 (*1)

(Rectification of judgment)

In Case C‑240/22 P-REC,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 5 April 2022,

European Commission, represented initially by F. Castillo de la Torre, M. Kellerbauer, N. Khan and C. Sjödin, subsequently by F. Castillo de la Torre, M. Kellerbauer and N. Khan, and lastly by F. Castillo de la Torre and M. Kellerbauer, acting as Agents,

appellant,

supported by:

Federal Republic of Germany, represented by J. Möller and P.-L. Krüger, acting as Agents,

intervener in the appeal,

the other parties to the proceedings being:

applicant at first instance,

Association for Competitive Technology Inc., established in Washington, DC (United States), represented by J.-F. Bellis, avocat, and K. Van Hove, advocaat,

Union fédérale des consommateurs – Que choisir (UFC – Que choisir),

interveners at first instance,

THE COURT (Fifth Chamber),

composed of I. Jarukaitis, President of the Fourth Chamber, acting as President of the Fifth Chamber, D. Gratsias (Rapporteur), and E. Regan, Judges,

Advocate General: L. Medina,

Registrar: A. Calot Escobar,

after hearing the Advocate General,

makes the following

1On 24 October 2024, the Court (Fifth Chamber) delivered the judgment in Commission v Intel Corporation (C‑240/22 P, EU:C:2024:915).

2The English-language version of that judgment contains a typographical error which it is appropriate for the Court to rectify of its own motion under Article 154(1) of the Rules of Procedure of the Court of Justice, which applies to the procedure on appeal in accordance with Article 190(1) of those rules.

On those grounds, the Court (Fifth Chamber) hereby orders:

1.Paragraph 323 of the judgment of 24 October 2024, Commission v Intel Corporation (C‑240/22 P, EU:C:2024:915), shall be rectified as follows:

‘In particular, first, the Commission submits that the finding of errors vitiating the AEC test does not mean that Intel passed that test and that the contested rebates were not capable of foreclosing competition, but only that the Commission did not prove, in the decision at issue, that Intel had failed that test. In that regard, referring to its main observations on the referral of the case back to the General Court, which are based in particular on recitals 1037 and 1038 of that decision, the Commission recalls that “Intel’s measure of viable cost” adopted in that decision is that of the average avoidable cost, which is a conservative, favourable cost benchmark for Intel, since it disregards the very high fixed costs that a competitor of Intel would have to incur in order to remain a viable competitor in the long term. Thus, the fact that Intel did not fail the AEC test, taking into account the average avoidable cost, is only one consideration to be taken into account in the overall assessment that is needed to answer the question whether the contested rebates were capable of foreclosing competition. The Federal Republic of Germany adds that, in some circumstances, such as those of the present case, exclusivity agreements may cause the trading partners to be more reticent about accepting equivalent offers from competitors of their supplier due to the commitment entered into and the dependency with regard to the non-contestable share of the products purchased.’

The original of this order shall be annexed to the original of the rectified judgment. A note of this order shall be made in the margin of the original of that judgment.

Luxembourg, 20 November 2024.

Registrar

Acting President of the Chamber

ECLI:EU:C:2025:140

*1 Language of the case: English.