As Efficient Competitor test

Foreword As Efficient Competitor Test: An overview of EU and national case law

Determining the appropriate standards to apply in Article 102 cases involving allegedly exclusionary conduct by a dominant firm continues to provide substantial room for debate between and within the legal and economic communities. However, the nature of the debate has progressed substantially since the European Commission adopted an approach to assessing whether a dominant firm’s conduct amounts to anti-competitive foreclosure that is more closely aligned with the economic literature by publishing its Priority Guidance Paper (“PGP”).

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The Brattle Group (London)
United Kingdom 4 contributions 8594 visits

Unilateral Practices

 The EU Commission revamps its Guidance on exclusionary abuses and enforcement priorities
Cleary Gottlieb Steen & Hamilton (Brussels)
Belgique 14 contributions 5082 visites
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Cleary Gottlieb Steen & Hamilton (Brussels)
Belgium 2 contributions 121 visits
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Cleary Gottlieb Steen & Hamilton (New York)
United States 1 contribution 64 visits
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Commission Revamps its Article 102 Guidance and Will Adopt new Guidelines in 2025* On March 27, 2023, the European Commission (the “Commission”) announced it would revise its 2008 Guidance on enforcement priorities regarding Article 102 TFEU (the “2008 Guidance”). The Commission has amended (...)

The EU Commission announces Guidelines on exclusionary abuses which acknowledge the central role of an effects-based approach in abuse of dominance cases
Van Bael & Bellis (Brussels)
Belgium 29 contributions 5279 visits
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Van Bael & Bellis (Brussels)
Belgique 34 contributions 7633 visites
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Van Bael & Bellis (Brussels)
Belgique 59 contributions 14071 visites
On 27 March 2023, the European Commission (“Commission”) launched a new legislative and policy initiative which aims to replace the Commission’s 2008 guidance on its enforcement priorities in Article 102 cases involving allegedly exclusionary conduct (the “2008 Guidance Paper”) with formal (...)

The EU Commission announces plans for new Article 102 TFEU Guidelines and amends the previous Guidance on enforcement priorities
Herbert Smith Freehills (Brussels)
Belgique 44 contributions 17675 visites
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Herbert Smith Freehills (Brussels)
Belgium 116 contributions 71789 visits
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Herbert Smith Freehills (London)
United Kingdom 2 contributions 2301 visits
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On 27 March 2023, the European Commission (Commission) announced its intention to adopt detailed new guidelines on the application of Article 102 TFEU to exclusionary conduct. The Commission explained that “Article 102 TFEU is one of the few areas of European competition law where no (...)

The EU Commission clarifies effects-based approach to exclusionary conduct by dominant companies with the publishing of its new guidelines
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgique 60 contributions 26207 visites
European Commission Clarifies Effect-Based Enforcement of Exclusionary Conduct by Dominant Companies* In the European Commission’s (EC’s) most significant policy shift on abuse of market dominance in 15 years, the authority published revised guidelines, heralding a shift away from the more (...)

The EU Commission takes action to amend the Framework on exclusionary abuses of dominance
Jones Day (Brussels)
Belgique 30 contributions 21676 visites
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Jones Day (Brussels)
Belgium 21 contributions 9551 visits
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Jones Day (Brussels)
Belgium 20 contributions 7974 visits
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In Short The Situation: On 27 March 2023, the European Commission ("Commission") published a Communication amending its 2008 Guidance on enforcement priorities concerning exclusionary abuses ("amended 2008 Guidance Paper"), and launched a consultation process for the adoption of Guidelines (...)

The EU Commission amends the Guidance on abuse of dominance
Freshfields Bruckhaus Deringer (London)
Royaume-Uni 8 contributions 19055 visites
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Freshfields Bruckhaus Deringer (Berlin)
Germany 7 contributions 5633 visits
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Freshfields Bruckhaus Deringer (Brussels)
Belgium 1 contribution 108 visits
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In a surprise move, the European Commission has published a revised version of its 2008 guidance on enforcement priorities for abusive exclusionary conduct by dominant undertakings ( Guidance ). The amendments were published on 27 March 2023, without prior consultation and with immediate (...)

The EU Commission announces Guidelines on exclusionary abuses and amends Guidance on enforcement priorities
European Commission - DG COMP (Brussels)
Belgium 1338 contributions 2823901 visits
Antitrust: Commission announces Guidelines on exclusionary abuses and amends Guidance on enforcement priorities* The European Commission has launched a Call for Evidence seeking feedback on the adoption of Guidelines on exclusionary abuses of dominance. In parallel, it has published a (...)

The EU Court of Justice finds a major FMCG company liable for abuse of dominance due to exclusivity clauses imposed by its independent distributors on operators of sale outlets (Unilever Italia)
European Court of Justice (Luxembourg)
Luxembourg 330 contributions 102751 visits
Abuse of a dominant position: exclusivity clauses in distribution contracts must be capable of having exclusionary effects* The competition authority is obliged to assess that actual capacity to exclude by also taking into account the evidence submitted by the undertaking in a dominant (...)

The EU Court of Justice confirms that an effects-based approach applies to exclusive dealing and clarifies the narrow circumstances under which the conduct of distributors can engage the liability of a dominant company (Unilever Italia)
White & Case (Brussels)
Belgium 20 contributions 10217 visits
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White & Case (Brussels)
Belgium 38 contributions 65570 visits
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White & Case (Brussels)
Belgique 1 contribution 669 visites
On 19 January 2023, the EU Court of Justice, answering questions from the Italian Council of State, confirmed that the Intel effects-based approach applies also to exclusive dealing practices and held that competition authorities must duly examine economic evidence produced by dominant (...)

The EU Court of Justice preliminarily determines that dominant firms can be held to account for abusive conduct even when third parties implement the infringement (Unilever Italia)
Hausfeld (London)
Royaume-Uni 20 contributions 5171 visites
On 19 January 2023, the CJEU delivered its preliminary ruling in the case Unilever Italia Mkt Operations Srl v Autorità Garante della Concorrenza e del Mercato, C-680/20 (“AGCM”) (“Unilever”), on two questions posed by the Consiglio di Stato (Italian Council of State). The first related to the (...)

The EU General Court confirms Android abuse of dominance through tying, with the real legacy of the case extending far beyond (Google Android)
Centre for Economic Policy Research (CEPR) (London)
Royaume-Uni 33 contributions 78403 visites
This article has been nominated for the 2023 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The General Court confirmed on 14 September 2022 the EC finding in 2018 that Google had abused its dominance by tying its Android operating system with its app (...)

The EU Court of Justice delivers a ruling which sheds more light on non-price abuses under Article 102 TFEU in relation to conduct which constitutes an abuse of dominance and the interpretation of the concept of "competition on the merits" (Servizio Elettrico Nazionale)
Hausfeld (London)
Royaume-Uni 20 contributions 5171 visites
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Hausfeld (London)
United Kingdom 4 contributions 1201 visits
Exclusionary non-price abuses under Article 102 TFEU: useful guidance from the CJEU The recent ruling by the Court of Justice of the European Union (CJEU) in C-377/20, Servizio Elettrico Nazionale and Others v Autorità Garante della Concorrenza e del Mercato is a helpful summary of the (...)

The EU General Court confirms the critical role of robust economic analysis in abuse of dominance cases (Intel)
Oxera (London)
Royaume-Uni 13 contributions 12019 visites
After more than two decades, the Intel saga may have finally ended with the General Court’s judgment of 26 January 2022. The judgment—which had at its core the use of the ‘as-efficient competitor’ test in the context of loyalty rebates―confirms the critical role of robust economic analysis in (...)

The EU General Court annuls the Commission’s landmark decision fining a semiconductor company for €1.06B for abuse of dominant position (Intel)
Jones Day (Brussels)
Belgique 30 contributions 21676 visites
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Jones Day (Frankfurt)
Germany 17 contributions 3856 visits
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Jones Day (Brussels)
Belgique 17 contributions 4788 visites
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The EU General Court ("GC") annulled the European Commission’s €1.06 billion antitrust fine imposed on Intel in 2009 for allegedly abusing its dominant position in x86 Central Processing Units ("CPUs") by offering loyalty rebates to customers, excluding competitors such as AMD. The GC held (...)

The EU General Court annuls the Commission’s decision which found that a semiconductor chip manufacturer had abused its dominant position and imposed a fine of €1.06B (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgique 60 contributions 26207 visites
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 68 contributions 31795 visits
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 38 contributions 13060 visits
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On January 26, 2022, the EU General Court (the Court) annulled the European Commission’s (the Commission) decision that Intel had abused its dominant position regarding its x86 central processing unit (CPU) computer chips and the imposition of a €1.06 billion fine. The judgment demonstrates (...)

The EU General Court annuls in part the Commission’s decision imposing a fine of €1.06B on the world’s largest semiconductor chip manufacturer (Intel)
General Court of the European Union (Luxembourg)
Luxembourg 64 contributions 29796 visits
The General Court annuls in part the Commission decision imposing a fine of € 1.06 billion on Intel* The Commission’s analysis is incomplete and does not make it possible to establish to the requisite legal standard that the rebates at issue were capable of having, or likely to have, (...)

The EU Court of Justice AG Rantos suggests to the Court criteria to qualify abusive exploitation for a dominant position involving exclusionary practices (Servizio Elettrico Nazionale)
ACTECON (Istanbul)
Turquie 12 contributions 1705 visites
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ACTECON (Istanbul)
Turquie 2 contributions 433 visites
Introduction: In recent weeks, highly praised opinion ("Opinion”) of the Advocate General Rantos, which was originally published in French, is released in English. In this article, we summarized the opinion of the Advocate General in four short sections and, supplemented each section with (...)

The Italian Administrative Court of First Instance annuls a national telecommunications company’s margin squeeze fine due to the Competition Authority incorrectly applying the "as efficient competitor" test (Vodafone)
Ashurst (Brussels)
Belgium 45 contributions 45899 visits
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Ashurst (Milan)
Italy 102 contributions 29550 visits
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Ashurst (Brussels)
Belgium 12 contributions 6353 visits
On 15 September 2021, the Italian administrative court of first instance ("TAR Lazio") upheld the appeal brought by Vodafone Italia S.p.A. ("Vodafone") against the decision of the Italian Competition Authority ("ICA") of 13 December 2017 in case A500(A). The TAR Lazio found that the ICA had (...)

The UK Competition Appeal Tribunal considers what constitutes abusive conduct and the use of expert economic advice and clarifies what the "as-efficient competitor test" entails (Royal Mail / Whistl)
Latham & Watkins (London)
Royaume-Uni 2 contributions 792 visites
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Latham & Watkins (London)
Royaume-Uni 10 contributions 12843 visites
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Latham & Watkins (London)
Royaume-Uni 1 contribution 741 visites
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UK COMPETITION APPEAL TRIBUNAL JUDGMENT: PUSHING THE ENVELOPE ON ABUSE OF DOMINANCE* The CAT’s Royal Mail v Ofcom judgment considers what constitutes abusive conduct, the “as-efficient competitor” test, and the use of expert economic advice. On 12 November 2019, the UK Competition Appeal (...)

The Swedish Court of Appeal confirms the dismissal of the Competition Authority’s action against a stock exchange company for alleged abuse of dominance (Nasdaq)
Van Bael & Bellis (Brussels)
Belgique 191 contributions 65834 visites
On 28 June 2019, the Swedish Patent and Market Court of Appeal (the “Appeal Court”) upheld a ruling of the Swedish Patent and Market Court that rejected an action brought by the Swedish Competition Authority (Konkurrensverket or “KKV”) against Nasdaq Stockholm Aktiebolag and several affiliated (...)

The Italian Regional Administrative Court of Lazio upholds fine for abuse of dominance in the ice-cream market through rebates and exclusivity clauses (Unilever / Distribuzione Gelati)
European Commission - DG COMP (Brussels)
Belgium 11 contributions 6566 visits
The AGCM fined Unilever Italia Mkt Operations Srl (“Unilever”), which belongs to the Unilever Group and is active in the production and distribution of ice cream, food and home and personal care products, EUR 60.669 million for infringing Article 102 TFEU by putting in place exclusivity (...)

The Italian Competition Authority fines several telecom companies for margin squeeze (Telecom Italia / Vodafone)
Van Bael & Bellis (Brussels)
Belgique 191 contributions 65834 visites
On 13 December 2017, the Italian Competition Authority (“ICA”) fined Telecom Italia S.p.A. (“TIM”) and Vodafone Italia S.p.A. (“Vodafone”) € 3.7 million and € 5.8 million respectively for abusing their dominant position on the market for wholesale bulk SMS services. The ICA considered that (...)

The Italian Competition Authority fines a company for abuse of dominance through rebates in the single-wrapped ice cream market (Unilever Italia)
Sapienza University of Rome
Italy 3 contributions 1824 visits
On 6 December 2017, the Italian Competition Authority (“ICA”, “Autorità Garante della Concorrenza e del Mercato”, “AGCM”) sanctioned Unilever Italia Mkt. Operations S.r.l. (“Unilever”) for an abuse of dominant position in the Italian ice cream sector in breach of Article 102 TFUE. After a (...)

The EU Court of Justice refers a case back to the General Court for re-examination (Intel)
Norton Rose Fulbright (Brussels)
United States 31 contributions 13962 visits
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Norton Rose Fulbright (London)
Royaume-Uni 6 contributions 1267 visites
Major victory for Intel as CJEU sends case back to General Court for re-examination* On 6 September, the EU’s highest court, the Court of Justice (CJEU), released its long-awaited decision in the Intel case, in which the Commission imposed a fine of €1.06 billion – at the time, the largest (...)

The EU Court of Justice quashes a judgment of the General Court that upheld a fine of €1.06 billion for an abuse of dominance due to implementing loyalty rebates based on exclusivity agreements (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgique 20 contributions 12513 visites
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 68 contributions 31795 visits
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 38 contributions 13060 visits
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On September 6, 2017 ,the Court of Justice of the European Union (CJEU) quashed the 2014 judgment of the General Court (GC) that upheld a fine of €1.06 billion ($1.5 billion) on Intel Corporation Inc. (Intel) for abusing a dominant market position by implementing loyalty rebates based on (...)

The EU Court of Justice revisits forty years of case law on when a dominant company’s rebate scheme may be abusive (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgique 60 contributions 26207 visites
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Baker McKenzie (London)
Royaume-Uni 5 contributions 2969 visites
In its ruling on the European Commission’s 500 page Intel decision, in a crisp 150 paragraphs, the EU Court of Justice (the Court) revisited forty years of jurisprudence on when a dominant company’s rebate scheme may be abusive. Though no final decision for Intel, the case marks a potentially (...)

The EU Court of Justice annuls the General Court’s ruling that upheld the fine imposed by the Commission for an abuse of dominance (Intel)
Jones Day (Brussels)
Belgique 28 contributions 8562 visites
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Jones Day (Brussels)
Belgique 30 contributions 21676 visites
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Jones Day (Frankfurt)
Germany 17 contributions 3856 visits
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What happened? The European Court of Justice ("ECJ") set aside a General Court ruling that had upheld a €1.06 billion fine imposed by the European Commission on Intel for abusing its dominant position in the market for x86 central processing units ("CPUs"). Background In its 2009 (...)

The EU Court of Justice endorses an effects-based assessment of rebates (Intel)
White & Case (Brussels)
Belgium 38 contributions 65570 visits
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White & Case (Brussels)
Belgium 57 contributions 57398 visits
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White & Case (Brussels)
États-Unis 21 contributions 24450 visites
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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 that the European Commission ("Commission") (...)

The EU Court of Justice renders its judgment in a case regarding loyalty rebates granted by dominant companies (Intel)
Baker Botts (Brussels)
Belgique 27 contributions 19975 visites
An alternative view on accuracy and administrability Introduction In its judgment in Intel of 6 September 2017, the Court of Justice of the European Union (“CJEU”) rejected the notion that particular loyalty rebates granted by a dominant company are subject to a per se illegality standard (...)

The EU Court of Justice issues a landmark judgment on the legal treatment of fidelity rebates granted by dominant companies (Intel)
Van Bael & Bellis (Brussels)
Belgique 191 contributions 65834 visites
On 6 September 2017, the Court of Justice of the European Union (“ECJ”) issued its long-awaited judgment in the Intel case (Case C-413/14 P), setting aside the General Court’s (“GC”) judgment. The GC must now re-assess the legality of the Commission’s decision in light of the ECJ’s ruling. (...)

The EU Court of Justice modernizes abuse of dominance notion (Intel)
Cleary Gottlieb Steen & Hamilton (Brussels)
Belgique 30 contributions 32070 visites
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Cleary Gottlieb Steen & Hamilton (Brussels)
Belgique 19 contributions 20632 visites
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Cleary Gottlieb Steen & Hamilton (London)
United Kingdom 40 contributions 39403 visits
(“CJEU”) set aside General Court’s 2014 Intel judgment, upholding a European Commission (the “Commission”) decision fining Intel €1.06 billion for abuse of dominance through exclusivity rebates . The CJEU held that the General Court had erred in failing to examine all of Intel’s arguments (...)

The EU Court of Justice reverses the General Court’s decision in an abuse of dominance case against a Big Tech company in the market for processors and rules that rebates should be judged under the rule of reason (Intel)
Compass Lexecon (Washington)
Belgique 40 contributions 82107 visites
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The Graduate Institute for International and Development Studies (Geneva)
Suisse 15 contributions 33281 visites
Roundtable Discussion on the ECJ ruling in Intel* On 6 September 2017, the European Court of Justice (“ECJ”) issued a landmark judgment where it set aside the judgment of the General Court (“GC”) in the highly debated Intel matter. This judgment is of particular significance because it (...)

The EU Court of Justice orders new assessment in a case of abuse of dominance by a semi-conductor company granting loyalty rebates (Intel)
FTI Consulting (Brussels)
Belgium 4 contributions 4182 visits
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Dechert (Paris)
France 47 contributions 68846 visites
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Dechert (Brussels)
Belgium 26 contributions 35653 visits
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EU Court Orders New Assessment of Intel’s Rebates The Court of Justice of the European Union (CJEU) has quashed a ruling by the EU’s General Court which had upheld the European Commission’s (EC) 2009 finding of abuse of dominance by Intel Corporation Inc. Intel was fined €1.06 billion, a (...)

The EU Court of Justice AG Wahl delivers his opinion in a case regarding rebates and calls for a new approach to Article 102 (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgique 60 contributions 26207 visites
Call for a common-sense approach to Article 102 - Advocate General Wahl on Intel* If AG Kokott in Post Danmark II was a 102 hawk – ordoliberal-redux, fossilizing form over function, economics on the “too difficult pile” for authorities and courts – then AG Wahl firmly sets out his stall as (...)

The EU Court of Justice AG Wahl recommends that the Court grant an appeal against the judgment of the General Court, which had upheld a decision of the Commission imposing a fine of €1.06 billion for abuse of a dominant position (Intel)
Van Bael & Bellis (Brussels)
Belgique 191 contributions 65834 visites
On 20 October 2016, Advocate General Wahl rendered his opinion on Intel’s appeal before the Court of Justice of the European Union (“CJEU”) against the judgement of the General Court, which had upheld a decision of the European Commission of 13 May 2009 imposing a fine of € 1.06 billion for (...)

The EU Court of Justice rules on issues concerning retroactive rebates and the procedures through which these rebates can be characterized as abusive (Post Danmark II)
Covington & Burling (Brussels)
Belgium 14 contributions 5598 visits
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Linklaters (Brussels)
Belgium 1 contribution 435 visits
I. The Parties Post Danmark S/A is a Danish undertaking that provides postal services in Denmark. The undertaking provides postal services and applies uniform tariffs throughout Danish national territory. At the time of the main proceedings, in 2007 and 2008, Post Danmark was controlled by (...)

The EU Court of Justice rules on whether a retroactive loyalty rebates scheme is liable to have an exclusionary effect (Post Danmark II)
Quinn Emanuel Urquhart & Sullivan (Brussels)
France 8 contributions 5074 visits
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Quinn Emanuel Urquhart & Sullivan (Brussels)
Belgium 7 contributions 5380 visits
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Quinn Emanuel Urquhart & Sullivan (Brussels)
Belgium 6 contributions 6463 visits
The EU Court of Justice has handed down its much-awaited preliminary ruling in Post Danmark II . This ruling marks an ‘evolution’ rather than a ‘revolution’ in the assessment of rebates under Article 102 TFEU. While regrettably unclear in certain passages, some aspects of the Court of (...)

The EU Court of Justice rules on retroactive loyalty rebates and offer clarity (Post Danmark II)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgique 60 contributions 26207 visites
The first Post Danmark case in 2012 brought about a modest antitrust revolution on Article 102 applicable to discrimination. Rarefied economic concepts were confirmed. Price discrimination as a standalone abuse was all but confined to a historical footnote in antitrust textbooks, to be (...)

The EU Court of Justice rules on retroactive loyalty rebates (Post Danmark II)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 68 contributions 31795 visits
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 78 contributions 58678 visits
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgique 20 contributions 12513 visites
On October 6, 2015, the European Court of Justice (the ECJ) issued an important judgment clarifying the application of Article 102 to retroactive loyalty rebates (Post Danmark AS, Case C 23/14). The case, which had been referred to the ECJ by the Danish Commercial Court, concerned rebates for (...)

The EU Court of Justice confirms “safe harbour” for volume rebates but creates new challenges (Post Danmark II)
King’s College (London)
Belgique 13 contributions 9329 visites
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Gibson Dunn (Brussels)
Belgium 1 contribution 813 visits
This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Rethinking Rebates Policy Under EU Competition Law* On 6 October 2015, the European Court of Justice (ECJ) ruled in a case concerning rebates and when they (...)

The Spanish High Court issues landmark judgment on the need to establish foreclosure effects of a margin squeeze (Correos)
Linklaters (Madrid)
Espagne 1 contribution 579 visites
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Linklaters (Madrid)
Espagne 1 contribution 579 visites
1 Introduction On 21 January 2014, the Spanish Markets and Competition Commission (“CNMC”) imposed a fine of €8,170,000 on the Spanish postal service incumbent Sociedad Estatal Correos y Telégrafos, S.A. (“Correos) for allegedly abusing its dominant position on the wholesale market for (...)

The EU Court of Justice AG Kokott deals another blow to the economic assessment of rebates (Post Danmark II)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgique 60 contributions 26207 visites
Advocate general deals another blow to economic assessment of rebates* It is never a good sign when an advocate general’s opinion warns the European Court of Justice (ECJ) not to be swayed by “ephemeral trends” or the “Zeitgeist” of economic analysis, but instead to stick to the “legal (...)

The EU General Court upholds the Commission’s record fine and states that exclusivity-inducing rebates are anticompetitive by default (Intel)
European Commission - DG COMP (Brussels)
Belgique 9 contributions 6933 visites
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Intel and the future of Article 102* A test-case for the effects-based approach In a long-awaited ruling, last week’s General Court judgment has confirmed (...)

The EU General Court upholds the Commission’s decision regarding exclusivity rebates on the microprocessor market (Intel)
Dentons (Brussels)
Belgique 17 contributions 9769 visites
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Introduction On 12 June 2014 the General Court issued a judgment upholding in its entirety the European Commission’s decision of 13 May 2009 imposing a fine of (...)

The EU General Court upholds in its entirety the Commission’s decision imposing a fine on a microprocessor manufacturer for abusing a dominant position in the market for desktop and laptop microprocessors (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 68 contributions 31795 visits
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 78 contributions 58678 visits
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgique 20 contributions 12513 visites
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In a long-awaited judgment issued on June 12, 2014, the General Court upheld in its entirety the European Commission’s May 13, 2009, decision imposing a fine of €1.06 billion ($1.5 billion) on Intel for abusing a dominant position in the market for x86 CPUs. In particular, the court upheld the (...)

The EU General Court upholds Commission’s decision imposing a fine on a manufacturer for restricting competition and foreclosing competitors by granting exclusivity rebates in the market for computer processors (Intel)
European Commission - DG COMP (Brussels)
Belgique 9 contributions 6933 visites
The views expressed in this memo are those of the author’s, and do not reflect the opinions of other CRA experts, or CRA’s clients. A test-case for the effects-based approach In a long-awaited ruling, General Court judgment has confirmed the Commission’s 2009 Intel décision. The (...)

The UK OFCOM dismisses the case in pricing wholesale calls and distinguishes between technical margin squeeze and abuse of dominance (Thus / Gama Telecom / BT)
UK Competition & Markets Authority - CMA (London)
France 19 contributions 21916 visits
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Charles River Associates International (CRA) (Sydney)
Australia 1 contribution 200 visits
When is a margin squeeze not an abuse?* On 20 June 2013 Ofcom closed its long-running investigation of BT’s pricing of its Wholesale Calls product with a “no grounds for action” decision. The investigation, which commenced in August 2008, focused on allegations of margin squeeze made by (...)

The Danish Supreme Court ends a decade-long case concerning the national postal incumbent by delivering the final judgment in the predatory price case (Post Danmark)
Kromann Reumert (Copenhagen)
Denmark 16 contributions 18734 visits
On 15 February 2013, the Danish Supreme Court ended the decade-long Post Danmark case by delivering the final judgment in the case. This note gives a brief overview of the facts and the procedure of the case and then comments on what we can learn from the Supreme Court judgment in its (...)

The EU Court of Justice entirely dismisses pharmaceutical company’s appeal on abusive patent misuse (AstraZeneca)
Mircea & Partners (Bucharest)
Roumanie 32 contributions 16596 visites
I. Introduction On 6 December 2012, the CJEU issued its judgment in the long-running AstraZeneca litigation. The General Court’s judgment has been upheld in its entirety. The only victorious battle scored by the appellant refers to what type of conduct before the national regulatory (...)

The EU General Court dismisses Spanish telecom incumbent’s appeal against a Commission decision that imposed a €151 million fine on the company for a margin squeeze in the regulated national broadband market (Telefónica)
BMW Automag (Munich)
Germany 2 contributions 1413 visits
On 29 March 2012 the General Court (“GC”) of the European Union dismissed an appeal lodged by Telefónica and its wholly owned subsidiary Telefónica España (hereinafter “Telefónica”) against a Commission decision of 4 July 2007 that imposed a €151 million fine on the company for having abused (...)

The EU General Court dismisses Spain’s appeal against the Commission’s infringement decision that held national telecom incumbent liable for an abusive margin squeeze in the regulated Spanish broadband market (Telefónica)
BMW Automag (Munich)
Germany 2 contributions 1413 visits
On 29 March 2012 the General Court ("GC") of the European Union dismissed an appeal lodged by the Spanish state against a Commission decision of 4 July 2007 that imposed a €151 million fine on Telefónica for a margin squeeze in the Spanish broadband market. The GC’s judgment confirms the (...)

The EU Court of Justice affirms the application of a consumer-oriented effects-based approach to exclusionary pricing practices of dominant undertakings and the "as efficient competitor test" (Post Danmark)
Brussels School of Competition (Brussels)
Belgique 18 contributions 35890 visites
The author is Principal Expert in Antitrust Policy at DG Competition, European Commission. The views expressed in this article are his own and do not necessarily reflect those of DG Competition or the European Commission. The author expresses its thanks Ekaterina Rousseva and Carles Esteva (...)

The EU Court of Justice applies the effects-based approach to claim of exclusionary pricing abuse (Post Danmark)
Belgian Competition Authority (Brussels)
Belgium 18 contributions 20458 visits
Looking back at a 2012 highlight: Post Danmark* Looking back at 2012 antitrust developments and browsing through this blog, I was surprised not to see any posting on what was in my view a major highlight of the past year, namely the EU Court of Justice (ECJ) judgment in Post Danmark (...)

The EU Court of Justice endorses an effects-based approach on the assessment of low pricing policy under Article 102 TFEU (Post Danmark)
Netherlands Authority for Consumers & Markets- ACM (The Hague)
Pays-Bas 4 contributions 1439 visites
Post Danmark: does the ECJ take the effects based approach further than a mere price/cost-test and does it oblige the national judge to apply that effects based approach ex nunc?* In a grand chamber judgment in case C‑209/10, Post Danmark, the European Court of Justice (ECJ) handed down a (...)

The Swedish Market Court finds that national postal operator abused its dominant position in the market for bulk mail deliveries (Bring CityMail Sweden / Posten Meddelande)
Stockholm University
Suède 6 contributions 8218 visites
In a ruling of 8 June 2011, the Swedish Market Court prohibits the national postal operator Posten from applying a worksharing discount system on certain bulk mail deliveries. The discount system is found to have foreclosing effects, and its application constitutes an abuse of Posten‘s (...)

The EU Court Justice AG Mengozzi issues an opinion on price discrimination and exclusionary abuses of dominance in the bulk mail industry (Post Danmark)
Gatti Pavesi Bianchi Ludovici (Milan)
Italie 10 contributions 3061 visites
Price discrimination and exclusionary abuses of dominance: A call for effects-based enforcement* It is often said, with good statistical records, that opinions of the Advocate Generals are to a large extent endorsed by the European Court of Justice (“ECJ”). If so, the opinion recently handed (...)

The EU Court of Justice issues a preliminary ruling in a case concerning price squeeze abuses providing clear guidance on this issue (TeliaSonera)
Jones Day (Brussels)
Belgique 28 contributions 8562 visites
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Jones Day (Brussels)
Belgium 20 contributions 7974 visits
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 17 February 2011, the European Union Court of Justice ("CJ") issued a preliminary ruling in an ongoing case concerning price squeeze abuses. Questions were (...)

The EU Court of Justice holds a preliminary ruling in a margin squeeze case in the telecommunications sector (TeliaSonera)
Airbus (Toulouse)
France 5 contributions 6221 visites
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EFTA Surveillance Authority (Brussels)
Belgium 1 contribution 847 visits
The opinions expressed in this article are the personal views of the individual authors and do not necessarily represent the views of the employers of the authors. Warm thanks are expressed to Dilip Roy, Ben Harries and Simon Maunder for their contribution to this paper. Background Until (...)

The EU Court of Justice upholds EU Commission’s fine against telecommunications operator in margin squeeze case (Deutsche Telekom)
Jones Day (Brussels)
Belgique 28 contributions 8562 visites
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Jones Day (Brussels)
Belgium 20 contributions 7974 visits
This article is the winner for the business category, unilateral conducts section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 14 October 2010, the European Court of Justice (ECJ) upheld the European Commission’s € 12.6 million fine on (...)

The EU Court of Justice upholds the €12.6 million fine imposed by the EU Commission for abuse of dominant position in the German telephony fixed market (Deutsche Telekom)
Dentons (Brussels)
Belgique 17 contributions 9769 visites
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Covington & Burling (Frankfurt)
Germany 12 contributions 6274 visits
On October 14, the Court of Justice of the European Union (the Court) issued its judgment in Deutsche Telekom AG vs. Commission (Case C-280/08 P, hereinafter the “Judgment”) dismissing an appeal brought by Deutsche Telekom AG (Telekom) against a judgment of the Court of First Instance (now the (...)

The EU General Court confirms fine imposed by the Commission for abuse of dominant position in the market for reverse-vending machines (RVM) used to collect used beverage containers focusing on exclusive agreements and loyalty-based rebates (Tomra)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 68 contributions 31795 visits
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 78 contributions 58678 visits
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgique 20 contributions 12513 visites
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On September 9, 2010, the General Court of the EU (the Court) issued its judgment in Tomra vs. Commission (Case T-155/06), dismissing an appeal brought by Tomra against a European Commission decision imposing a €24 million fine for abuse of its dominant position in Germany, Austria, Sweden, (...)

The EU Advocate General Mazák seeks to affirm the judgment in margin squeeze case (Deutsche Telekom)
Jones Day (Brussels)
Belgique 28 contributions 8562 visites
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Jones Day (Brussels)
Belgium 20 contributions 7974 visits
On 22 April 2010, Advocate General (‘AG’) Jan Mazák at the European Court of Justice (‘ECJ’) issued his opinion in Deutsche Telekom‘s appeal to the ECJ against the General Court ruling upholding the European Commission decision to impose a € 12.6 M fine on Deutsche Telekom for abusive margin (...)

The Swiss Competition Authority fines an ADSL provider for margin squeeze (Swisscom)
Sigma Legal (Geneva)
Switzerland 5 contributions 6376 visits
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Tetra Pak (Pully)
Switzerland 1 contribution 1698 visits
The telecom undertaking Swisscom provides, through its subordinate entity Bluewin, ADSL services (broadband internet) to final consumers (retail market). Furthermore, Swisscom offers the preliminary service which is indispensible for broadband internet. Swisscom/Bluewin’s competitors, (...)

The EU Commission fines a leading computer manufacturer for abuse of its dominant position (Intel)
Van Bael & Bellis (Brussels)
Belgique 191 contributions 65834 visites
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Practising Law Institute (New York)
États-Unis 93 contributions 31427 visites
On 21 September 2009, the Commission published the non-confidential version of the Intel decision of 13 May 2009, and a summary of the decision was also published in the Official Journal of 22 September 2009. The materials confirm that the Commission has challenged two specific practices: (i) (...)

The EU Commission fines a US semiconductor chip manufacturer for abuse of a dominant position (Intel)
European Commission - DG COMP (Brussels)
Belgium 8 contributions 7290 visits
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European Commission - DG COMP (Brussels)
Belgium 1 contribution 2056 visits
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European Commission - DG COMP (Brussels)
Belgium 1 contribution 2056 visits
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"Commission finds abuse of dominance in the Intel case"* I. Introduction On 13 May 2009, the European Commission concluded its Intel investigation by way of a formal Decision. The Commission found that Intel had abused its dominant position in x86 Central Processing Units (CPUs) by (...)

The French Supreme Court clarifies the use of the indispensable input criterion in a margin squeeze case (France Telecom / SFR)
Autorité de la concurrence (Paris)
France 9 contributions 21599 visites
The French Supreme Court decided a margin squeeze case in the telecom sector after long proceedings and ten years after an undertakings’ association filed its complaint. In this case, the French branch of the European Telecom and Networks Association (ETNA) complained before the French (...)

The EU Commission issues guidance on its enforcement priorities in applying EU rules on abuse of a dominant position to abusive exclusionary conduct by dominant undertakings
Brussels School of Competition (Brussels)
Belgique 18 contributions 35890 visites
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DG JUST (Brussels)
Belgium 4 contributions 5988 visits
"Implementing an effects-based approach to Article 82"* I. Introduction On 3 December 2008, the Commission issued Guidance on its enforcement priorities in applying Article 82 to abusive exclusionary conduct by dominant undertakings. In so doing, the Commission formally endorsed an (...)

The EU Commission publishes its guidance paper on exclusionary abuses under Article 82 EC
White & Case (Brussels)
Belgium 57 contributions 57398 visits
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White & Case (Brussels)
États-Unis 21 contributions 24450 visites
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White & Case (Brussels)
Belgium 50 contributions 37928 visits
I. BACKGROUND The European Commission published the 24th February 2009 a Communication containing its long-awaited Guidance Paper on exclusionary abuses under Article 82 C(Commission Communication – Guidance on the Commission’s Enforcement Priorities in Applying Article 82 EC Treaty to (...)

The EU Commission issues a Communication on abusive exclusionary conduct by dominant undertakings
Jones Day (Brussels)
Belgique 30 contributions 21676 visites
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Delegation of the European Union to the Republic of Cameroon and Equatorial Guinea (Yaounde)
Cameroon 9 contributions 9638 visits
On Wednesday, 3 December 2008, the European Commission issued the long awaited Communication on abusive exclusionary conduct by dominant undertakings. This marks the end of an extensive review process, launched in December 2005 by the Commission’s Staff Discussion Paper on exclusionary abuses (...)

The EU Competition Commissioner Kroes discusses future role of guidelines in article 82 cases
Van Bael & Bellis (Brussels)
Belgique 191 contributions 65834 visites
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Practising Law Institute (New York)
États-Unis 93 contributions 31427 visites
In a speech on 25 September 2008, Commissioner Kroes provided an update on the status of the Article 82 Guidelines with respect to exclusionary abuses. In this regard, Commissioner Kroes noted that a new draft document was created and circulated to the Member States, and earlier in September (...)

The EU General Court examines an appeal against a Commission’s decision on abuse of dominant position (Deutsche Telekom)
Van Bael & Bellis (Brussels)
Belgique 191 contributions 65834 visites
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Practising Law Institute (New York)
États-Unis 93 contributions 31427 visites
Details of Deutsche Telekom’s appeal against the Court of First Instance’s judgment of 10 April 2008 have been published. According to the summary of the appeal, Deutsche Telekom is arguing, inter alia, that the Court of First Instance infringed Article 82 EC and the principle of legitimate (...)

The EU Commission adopts a decision against Spanish incumbent telecoms operator for abuse of its dominant position in the broadband market (Telefónica)
DG JUST (Brussels)
Belgium 4 contributions 5988 visits
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OECD - Competition Division (Mexico City)
2 contributions 1457 visites
"Margin squeeze in the Spanish broadband market: a rational and profitable strategy"* On 4 July 2007, the European Commission adopted a decision against the Spanish incumbent telecoms operator Telefonica for a very serious abuse of its dominant position in the Spanish broadband market. The (...)

The Lithuanian Competition Authority fines the former telecom incumbent for margin squeeze limiting access to ADSL broadband internet access service (Teo)
Lithuanian Competition Authority (Vilnius)
Lituanie 28 contributions 102858 visites
On 5 October 2006 the Lithuanian Competition Council (CC) issued a decision establishing a fine of LTL 3,011,000 (approx. EUR 872,046) on TEO LT, AB (TEO) for the abuse of a dominant position prohibited by Article 9 of the Law on Competition. This was the third time that TEO, a former telecom (...)

The EU Commission publishes a discussion paper on abuse of dominance
Brussels School of Competition (Brussels)
Belgique 18 contributions 35890 visites
"Commission publishes discussion paper on abuse of dominance"* On 19 December 2005 the European Commission published a discussion paper on the application of the EC Treaty competition rules on the abuse of a dominant market position (Article 82). The discussion paper is designed to promote a (...)

Procedures

 The EFTA Court clarifies the applicable legal regime for private enforcement and margin squeeze (Fjarskipti / Siminn)
Municipality of Cagliari
167 contributions 133274 visits
Following a request for an advised opinion made by an Icelandic judge, the EFTA Court has handed down a judgement in the Fjarskipti v Siminn case touching on some procedural and substantive competition law issues. The EFTA Court clarified which are the rules that in the EFTA legal system apply (...)

The EU General Court holds that a duty to procure specific documents might be imposed on the Commission at the request of an undertaking which is the subject to an antitrust investigation under certain circumstances (Intel)
Mircea & Partners (Bucharest)
Roumanie 32 contributions 16596 visites
Access to documents not to be found in the Commission’s possession I. Background The Intel Cases have occupied the international arena of antitrust litigation for the past ten years and a definitive resolution has not been reached yet. The administrative proceeding initiated by the (...)