The ECJ Intel judgment

An important step towards a more effects-based approach in abuse of dominance cases.

On 6 September 2017, the European Court of Justice (ECJ) delivered its judgment in the Intel case. The ECJ, sitting in Grand Chamber, set aside the 2014 General Court (GC) judgment because the latter had failed to consider Intel’s arguments against the “as efficient competitor” (AEC) analysis that the European Commission (EC) had carried out in its 2009 decision. The ECJ referred the case back to the GC for further consideration.

The ECJ held that the EC needs to analyse all the relevant circumstances invoked by the dominant companies in its assessment of whether loyalty rebates are illegal. In addition, the GC on appeal must review all of the dominant company’s economic arguments against the EC's assessment, and cannot rely only on the exclusive nature of the rebates to confirm that they are illegal.

The judgment is also significant on the jurisdictional and procedural front. The ECJ confirms for the first time that a qualified effects test is sufficient to establish jurisdiction in an abuse of dominance case, and it also imposes on the EC an obligation to record all interviews with third party witnesses during an investigation.

Read our summary report on The ECJ Intel judgment.