𝐄𝐮𝐫𝐨𝐩𝐞𝐚𝐧 𝐂𝐨𝐮𝐫𝐭 𝐨𝐟 𝐉𝐮𝐬𝐭𝐢𝐜𝐞 𝐝𝐢𝐬𝐦𝐢𝐬𝐬𝐞𝐬 𝐄𝐂 𝐚𝐩𝐩𝐞𝐚𝐥 𝐚𝐠𝐚𝐢𝐧𝐬𝐭 𝐚𝐧𝐧𝐮𝐥𝐦𝐞𝐧𝐭 𝐈𝐧𝐭𝐞𝐥-𝐝𝐞𝐜𝐢𝐬𝐢𝐨𝐧

For background, today’s judgement is another episode in a long saga:

• On 13 May 2009, the Commission imposed a fine on Intel of approx. 1 billion EUR for various exclusionary practices in breach of the prohibition to abuse a dominant position.

• On 12 June 2014, the General Court dismissed Intel’s appeal against that decision.

• On 6 September 2017, the Court of Justice annulled the General Court’s dismissal in a landmark case. The Court of Justice ruled that, while certain practices can be presumed abusive, the Commission must still investigate the capability of the practice to foreclose when the undertaking denies this on the basis of supporting evidence.

• On 26 January 2022, the General Court reviewed the Commission’s effects-analysis in great detail and found it wanting, annulling the Commission’s decision in its entirety. This judgement was appealed by the Commission.

In today’s judgement, the Court of Justice agrees with the General Court’s factual analysis and provides useful guidance for dominant undertakings to assess whether a rebate risks foreclosing an as-efficient competitor. The Court of Justice clarifies in this respect that the as-efficient-competitor test must also be applied to rebates in the form of non-cash advantages.

The Court of Justice confirms that the General Court must consider any argument that puts into question the Commission’s assessment (i) of the facts and (ii) of the capability of excluding as-efficient competitors from the market.

The Intel-saga is not over with today’s judgement. On 22 September 2023, the Commission re-imposed a fine on Intel of approx. 376 million EUR for the exclusionary practices it considered to not be affected by the annulment (the so-called naked restrictions). Intel’s appeal against that decision is pending.

🔗 You can find the judgement here: https://lnkd.in/eFFe85t3

#competitionlaw #ECJ #europeancommission #intel #abuseofdominance