Intel and Article 102 TFEU Case Law: Making Sense of a Perpetual Controversy

32 Pages Posted: 9 Dec 2014

See all articles by Pablo Ibáñez Colomo

Pablo Ibáñez Colomo

London School of Economics - Law Department

Date Written: November 26, 2014

Abstract

In June 2014, the General Court of the EU delivered its judgment in Intel. The debates to which it has given rise in less than six months suggest that the controversy about the legal treatment of exclusive dealing and rebates under Article 102 TFEU is still very much alive. This piece seeks to make sense of the persistence of academic and non-academic discussions around the question. It appears that the real reasons behind the contentious status of the relevant case law are more limited in their nature and scope than commonly assumed. Ongoing disagreements are merely the manifestation of what can be termed a ‘friction’ in the case law.

If rulings like Intel (and previous ones like Michelin II and British Airways) are contested, this is so because they are difficult to reconcile with other judgments addressing the same or comparable issues. First, the case law on, respectively, article 101 and 102 TFEU is based on mutually incompatible premises. Secondly, and to the extent that there is no reason to presume that exclusivity and rebate schemes are implemented for anticompetitive purposes and/or to assume that they harm the competitive process, they would be assessed more sensibly under a standard – as ‘margin squeeze’ abuses and selective price cuts already are.

Suggested Citation

Ibáñez Colomo, Pablo, Intel and Article 102 TFEU Case Law: Making Sense of a Perpetual Controversy (November 26, 2014). LSE Legal Studies Working Paper No. 29/2014. Available at SSRN: https://ssrn.com/abstract=2530878 or http://dx.doi.org/10.2139/ssrn.2530878

Pablo Ibáñez Colomo (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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