The European Court of Justice (CoJ) just came back to business with a bang. On September 6, 2017, it delivered its long-awaited judgment in the Intel case. The CoJ refers the case back to the General Court (GC), with the instruction to review the economic arguments put forward by Intel in its defense against the European Commission’s (Commission) findings that its exclusivity rebates were anticompetitive.
The Intel judgment is significant insofar as it marks a major departure with previous case-law, which considered that exclusivity rebates are, by their very nature, anticompetitive. From now on, all rebates, whether exclusive or loyalty-enhancing, must be examined in light of all of the relevant circumstances, including their economic effects. In that respect, it must be ascertained whether the rebates are capable of excluding an as efficient competitor as the dominant company.
Arguably, this new approach is a – probably small – opening for dominant businesses willing to offer exclusivity rebates: under certain circumstances, such rebates might well withstand close antitrust scrutiny.
Click here to read our detailed briefing on the judgment.