The EU Court of Justice endorses an effects-based assessment of rebates (Intel)

On 6 September 2017, the Court of Justice of the European Union ("CJEU" or "Court") essentially held in Intel [1] that the European Commission ("Commission") cannot consider rebates, and in particular loyalty rebates, as per se illegal. Rather, the Commission needs to show that a specific rebates scheme is capable of restricting competition before finding a company liable for abuse of a dominant position under Article 102 TFEU. In doing so, the Commission is required to examine all the circumstances of the case and conduct the as-efficient competitor ("AEC") test. The CJEU also implicitly rejected the view that loyalty rebates are not pricing practices and as such subject to a less demanding test of restriction of competition than pricing practices. Instead, the Court makes clear

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Assimakis Komninos, James Killick, Jacquelyn F. MacLennan, Jérémie Jourdan, Jan Jeram, Strati Sakellariou-Witt, The EU Court of Justice endorses an effects-based assessment of rebates (Intel), 6 September 2017, e-Competitions Bulletin September 2017, Art. N° 84862

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