Luc Gyselen’s presentation focused on the legality test on exclusivity rebates. In particular, he addressed what he considered to be the two main points of Advocate General Wahl’s opinion. Firstly, whether the General Court (GC) erred in law by not looking into all the circumstances. Secondly, whether the GC erred in law by judging Intel’s capability to restrict competition as an abuse without diagnosing the degree of likelihood of anticompetitive foreclosure.
The first question required AG Wahl answering two sub-questions. Should exclusivity rebates be assessed in light of all circumstances? And if so, what does the consideration of “all the circumstances” entail?
Departing from the fact that AG Wahl opined that exclusivity rebates are not a “super category” of rebates, Luc Gyselen reminded that the Michelin I court ruled that the discount system in question did not entail any exclusivity agreements. In turn, this fundamentally distinguishes Michelin I from the loyalty rebates of the type that the Court had to consider in Hoffmann-La Roche. Based on a very strict reading of that passage Luc argued that the Court in Michelin I might have reserved the “taking into account all the circumstances” to the rebates different from those in Hoffmann-La Roche. However, Luc highlighted that whether you talk about exclusivity rebates or targeted rebates these have fundamental commonalities and can have an equivalent effect. In both cases, the dominant firm would have to make an estimation of the customers’ requirements (as the Hoffmann-La Roche court held) and monitor whether the customers are actually buying from them. The distinction, and thus categorisation made by the Intel court would thus be dead. However, he left open the question as to whether the difference between one another was a matter of degree or nature.