Loyalty Rebates after Intel: Time for the European Court of Justice to Overrule Hoffman-La Roche

Forthcoming in 11 (2015) Journal of Competition Law & Economics

George Mason Law & Economics Research Paper No. 15-15

38 Pages Posted: 30 Mar 2015 Last revised: 11 Oct 2015

Damien Geradin

Tilburg Law & Economics Center (TILEC); University College London - Faculty of Laws

Date Written: March 28, 2015

Abstract

In June 2014, the GCEU confirmed the Decision of the European Commission that condemned Intel for breaching Article 102 TFEU by adopting exclusive rebates and “naked restrictions”. This judgement, in which the GCEU considered that in line with Hoffman-La Roche loyalty rebates should be quasi-per se illegal has been subject to many criticisms as not in line with the teachings of economics. This paper discusses the shortcomings of this judgment and argues that it is great time for the CJEU to abandon the application of its quasi-per se rule of illegality approach to exclusive dealing and loyalty rebates and replace it by a structured rule of reason. Such an approach would have many advantages and create greater coherence in the case-law of the CJEU on unilateral pricing conduct.

Keywords: loyalty rebates, exclusive dealing, Intel case, EU competition law, antitrust, foreclosure

JEL Classification: D40, K21, L2, L22

Suggested Citation

Geradin, Damien, Loyalty Rebates after Intel: Time for the European Court of Justice to Overrule Hoffman-La Roche (March 28, 2015). Forthcoming in 11 (2015) Journal of Competition Law & Economics; George Mason Law & Economics Research Paper No. 15-15. Available at SSRN: https://ssrn.com/abstract=2586584 or http://dx.doi.org/10.2139/ssrn.2586584

Damien Geradin (Contact Author)

Tilburg Law & Economics Center (TILEC)

Tilburg, 5000 LE
Netherlands

University College London - Faculty of Laws ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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