Monday, March 30, 2015
Nicolas Petit, University of Liege - School of Law describes Intel, Leveraging Rebates and the Goals of Article 102 TFEU.
ABSTRACT: This paper reviews the 2014 Intel judgment of the General Court of the EU in relation to exclusivity rebates given by dominant firms. It distinguishes between the positive issue – ie the legal standard currently applicable to the assessment of dominant firms' rebates – and the prospective discussion – ie the legal standard that should optimally apply to dominant firms rebates. On the positive debate, the paper argues that Intel affirms a modified per se prohibition rule against dominant firms' exclusivity rebates. The scope of this standard is confined to leveraging rebates, and does not cover non-leveraging rebates, which must be analysed under the rule of reason. The paper also draws a distinction between exclusivity obligations and exclusivity options for which agencies and courts should undertake more economic analysis.
On the prospective debate, the paper starts from the assumption made by several scholars that Intel endorses a non-welfarist view of the goals of Article 102 TFEU. With this background, it questions which non-welfarist alternative goal can be ascribed to Article 102 TFEU. The paper finds that none of the three classic non-welfarist goals (ie competitive process, consumer choice and raising rivals' costs) can be acclimated in modern EU competition law.
It concludes that it would help all stakeholders, and in the first place the Commission, the national competition agencies, the General Court and the national courts – who are in the driving seat of competition enforcement – to benefit from a clear dicta of the Court of Justice of the EU ("CJEU") on the rationale underpinning the Article 102 TFEU prohibition, in so far as exclusionary conduct is concerned. The Court already sought to advance on this complex journey in Post Danmark, which remains a model of judicial clarity and literacy. Future cases – and in particular the pending appeal of the GC Intel judgment before the CJEU – offer a welcome opportunity to settle once and for all the current "purposivist" controversy, or whatever other label is used.