Wednesday, April 15, 2015
Brian Sher, Nabarro LLP argues Keep Calm—Yes; Carry on—No! A Response to Whish on Intel.
ABSTRACT: In November 2014 Professor Richard Whish published an editorial in this journal entitled ‘Intel v Commission: Keep Calm and Carry on!’ Whish makes two arguments: first, that the reaction to Intel from those who believe the ruling is a step backwards has been over-excited; and second, that—more or less—the General Court got it right. I agree with the first argument—although, to be fair, it applies on both sides of the debate. But in my view, the principles of substantive assessment for rebates set out by the General Court are not appropriate in more ways than Whish suggests. The Court of Justice will no doubt remain calm; but the seriousness of the responsibility it carries cannot be over-stated—both in Intel and in Post-Danmark II, the first ever reference in a rebates case. In talking about Intel we are talking about (i) exclusivity rebates (there is no controversy regarding the ‘naked practices’) and (ii) the three-fold classification as outlined in Whish's and Paul Nihoul's articles in this journal. Whish makes four substantive points—three supportive of the judgment and one critical. I agree with the one that is critical—that the General Court was wrong to reject coverage as relevant, for the reasons Whish gives. I will respond to each of the three supportive arguments briefly before moving to the challenges that lie ahead for the Court of Justice.