Intel wins victory in EU General Court in rebates abuse of dominance case

 

Intel wins victory in EU General Court in rebates abuse of dominance case

The General Court has ruled in Intel’s challenge against the European Commission's 2009 decision fining it a then record EUR1.06 billion for infringement of Article 102 TFEU through exclusivity rebates and other restrictions.

In 2014 the General Court rejected Intel’s appeal but in 2017, on appeal, the Court of Justice set aside the General Court judgment and referred the case back to the General Court.  The General had not properly considered arguments regarding the Commission’s ‘as efficient competitor’ test (AEC).

The General Court has now found that the Commission’s application of the AEC test was vitiated by several errors.  In particular, the Commission had not established according to the correct legal standard the propensity of each of Intel’s rebates to produce the requisite foreclosure effect.

The General Court further found that the Commission had erred in law in its application of the relevant case law.  It had not properly considered the market affected by the disputed practices and the duration of the rebates.

The General Court annulled the part of the Commission’s decision concerning conditional rebates as it related to Intel’s infringement of Article 102.  The General Court was not able to identify which part of the fine related solely to the contested rebates as opposed to naked restrictions on using competitor products also found by the Commission to be restrictive.  The General Court therefore annulled the Commission’s EUR1.06 billion penalty imposed on Intel in its entirety.

The judgment is an important endorsement of effects-based assessment in abuse of dominance cases.  The painstaking analysis by the General Court of the AEC test is useful, in particular in taking into account post-decision evidence.  It remains to be seen whether the Commission will bring an appeal against any aspects of the General Court’s ruling.

Case T‑286/09 RENV Intel Corporation, Inc v European Commission, ECLI:EU:T:2022:19