Previous business/academic article Next business/academic article
Business Articles Awards > Unilateral Conduct

New era dawning in EU competition law? CJEU endorses an effects-based assessment of rebates and sets aside lower court’s judgment in Intel

Assimakis Komninos et al., White & Case Alert, 07 SEP 2017

See James Killick's resume See Axel Schulz's resume See Assimakis Komninos's resume See Jacquelyn F. MacLennan's resume See Jérémie Jourdan's resume See Strati Sakellariou-Witt's resume See Jan Jeram's resume

Click here to read the full article online

On 6 September 2017, the Court of Justice of the European Union ("CJEU" or "Court") essentially held in Intel1 that the European Commission ("Commission") cannot consider rebates, and in particular loyalty rebates, as per se illegal. Rather, the Commission needs to show that a specific rebates scheme is capable of restricting competition before finding a company liable for abuse of a dominant position under Article 102 TFEU. In doing so, the Commission is required to examine all the circumstances of the case and conduct the as-efficient competitor ("AEC") test.

The CJEU also implicitly rejected the view that loyalty rebates are not pricing practices and as such subject to a less demanding test of restriction of competition than pricing practices. Instead, the Court makes clear that rebates are a form of pricing practice and subject to the same standards. This is an important development that re-introduces reason in the case law. The Court also departed from the formalistic classification of rebates into distinct groups that was previously proposed by EU courts.

Based on this, the CJEU set aside the judgment of the General Court ("GC") because it did not examine the Commission’s analysis of the AEC test and all of Intel’s arguments concerning that test, and referred the case back to the GC for a new examination taking account of the CJEU’s judgment.

Download our brochure