The Judgment of the EU Court of Justice in Intel and the Rule of Reason in Abuse of Dominance Cases

Abstract

This paper discusses the judgment of the EU Court of Justice of 06 September 2017 in the Intel case. It argues that the case-law of the Court of Justice has now embraced the rule of reason for the assessment of the legality of dominant undertakings exclusivity rebate systems in particular, and for the analysis of exclusionary practices in general. The judgment also establishes that efficiency is the public policy behind abuse of dominance law. This evolution of the case-law is likely to produce consequences in competition enforcement, by increasing reliance on tools like the "As Efficient Competitor" test, if not to make recourse to it unavoidable when the competition agency has publicly expressed a policy preference for this framework of analysis.

Keywords: Antitrust, Competition, Abuse of Dominance, Exclusivity, Rebates, Efficiency, Law and Economics

JEL Classification: K00, K20, K21, K40, K42, L40, L41