In a decision published on 6 September in Case
C-413/14 P Intel v EU Commission, the CJEU has referred one element of the
Intel case back to the General Court to consider further Intel’s argument that
rebates it offered did not have an anti-competitive effect.
The case concerns a fine of €1.06 billion imposed by the EU
Commission on Intel for having abused its dominant position on x86 CPUs from
October 2002 to December 2007. Intel offered prominent manufacturers of
computers ‘loyalty rebates’ which had the effect of stifling competition.
When Intel appealed to the General Court, that court
supported the Commission view that loyalty rebates granted by an undertaking in
a dominant position were, by their very nature, capable of restricting
competition such that an analysis of all the circumstances of the case and, in
particular, an as efficient competitor test (‘AEC test’) were not necessary.
The General Court ruling was appealed by Intel to the CJEU.
While the CJEU rejects Intel’s arguments alleging that the Commission lacked
territorial jurisdiction to penalise the abuse and its allegations of
procedural irregularities, it has taken the view that the General Court failed
to examine all of Intel’s arguments concerning the capacity of the rebates to restrict
competition. In particular, the CJEU notes that, while the Commission emphasised
that the rebates at issue were by their very nature capable of restricting
competition, it nevertheless carried out an in-depth examination of the
circumstances of the case in its decision and the AEC test played an important
role in the assessment of whether the rebate scheme was capable of having
foreclosure effects on as efficient competitors. The CJEU has held that the
General Court was therefore required to examine all of Intel’s arguments
concerning that test (such as, inter alia, the errors allegedly committed by
the Commission as regards that test), which the General Court failed to do. The
General Court’s judgment is set aside as a result of that failure and the
General Court must now examine, in the light of the arguments put forward by
Intel, whether the rebates at issue are capable of restricting competition.
None of this means that Intel avoids the fine; indeed, it
seems likely that it will still be upheld.
This case also demonstrates the importance of recognising the hierarchy
of decision-making in the CJEU – something which many reporters and commentators
(including this one) often gloss over.
