Friday, October 27, 2017
Julie N. Clarke, Melbourne Law School asks The Opinion of AG Wahl in the Intel Rebates Case: A Triumph of Substance over Form?
ABSTRACT: Rebates are a ubiquitous form of price competition which can be utilized either to intensify or to harm competition. Distinguishing pro-competitive from anti-competitive rebates and translating this into effective and administrable legal rules, remains a key challenge for competition law. The recent Opinion by Advocate General Wahl in the Intel appeal has identified deficiencies in the legal approach to dominant firm rebates under Article 102 TFEU and has proposed a ‘more economic’ case-by-case approach to their assessment. The proposed approach and the attempt by AG Wahl to reconcile it with existing case-law, raises a number of important questions for consideration by the European Court of Justice. This article examines AG Wahl’s Opinion and suggests that, while the substance of the proposed approach has merit, the form proposed is deficient in a number of respects.