Rebates after the General Court's Intel Judgment
23 Pages Posted: 13 Mar 2022 Last revised: 1 Apr 2022
Date Written: March 8, 2022
Twenty-one years after the first complaint against Intel’s distribution strategy was received by the European Commission, the case is finally closed: the General Court annulled the Commission’s infringement decision because it had not shown that Intel’s practices foreclosed market access. This paper reviews the General Court’s final judgment by first locating the Intel case in its wider context. We show that the Commission and the European Court of Justice used this case improperly to usher in a new approach to analyzing rebates. We then turn to discuss how the new approach is expected to operate and show why the Commission lost this case but more generally that the new approach to analyzing the compatibility of rebates under Article 102 TFEU makes it difficult for a competition authority to pursue these cases. More generally, the application of the new approach to rebates reveals a completely different understanding how competition law is to be used when assessing conduct of dominant firms from that which had been developed since the 1970s. There is little in judgments of the ECJ in 2017 and General Court in 2022 (which embrace and apply the new approach respectively) to explain why the Courts felt it legitimate to change the legal framework so radically.
JEL Classification: K21
Suggested Citation: Suggested Citation