This article has been nominated for the 2018 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.

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 that

Access to this article is restricted to subscribers

Already Subscribed? Sign-in

Access to this article is restricted to subscribers.

Read one article for free

Sign-up to read this article for free and discover our services.