The Future of Article 102 TFEU after Intel

Extract

I. Introduction

No judgment in the past decade has been awaited as eagerly as the appeal ruling in Intel.¹ There is something surprising about the expectation created around the case. The legal issues that sparked commentators’ interest when the General Court (hereinafter, the ‘GC’) judgment came out in 2014 had seemingly been settled for decades. The prima facie prohibition of exclusive dealing and loyalty rebates under Article 102 TFEU has indeed been reiterated many times over the years. In spite of this inauspicious background, the Intel judgment managed to surprise commentators and stakeholders. The Court of Justice (hereinafter, the ‘Court’ or the ‘ECJ’) introduced an important clarification that will have a significant impact on the analysis of abusive practices under Article 102 TFEU.

Intel makes two fundamental contributions to our understanding of the notion of abuse. First, it states that, as a matter of principle, Article 102 TFEU is only concerned with the exclusion of rivals that are as efficient as the dominant firm.² The departure from the market of rivals that are less attractive in terms of, inter alia, price, quality or innovation is deemed to be a natural outcome of the competitive process and as such unproblematic.³ The explicit statement of this position is important in that it confirms that what is true in relation to predatory pricing and selective price cuts is true across the board, at least as a rule. Second, the Court held that practices are only caught by Article 102 TFEU insofar as they are capable of having anticompetitive effects. By the same token, it should always be possible for a dominant firm to provide evidence showing that, in the context in which it is implemented, the practice is incapable of having such effects.⁴ In other words, the presumption underlying the prima facie prohibition of exclusive dealing and loyalty rebates can be rebutted by a dominant firm.