(This article was written during my stay as Senior Emile Noël Fellow at The Jean Monnet Center for International and Regional Economic Law & Justice, New York University. I have benefitted from discussions with and feedback from Ekaterina Rousseva, Svend Albaek, Lars Kjolbye, Einer Elhauge, Abraham Wickelgren and Michael Salinger. Aine Ryall improved the English. All errors and omissions are mine. Although I do not consider that there is any conflict of interest, it may be considered useful to mention that Svend Albaek and I were two of the main authors of the Article 82 Discussion Paper and the Article 102 Guidance. The opinions expressed in this article are strictly personal; they do not represent the views of the European Commission, DG Competition or any other institution,
ARTICLES: REBATES - CONDITIONAL PRICING - EXCLUSIVITY - GENERAL COURT - APPROACH "BY EFFECT" - APPROACH "BY OBJECT"
Conditional pricing: Why the General Court is wrong in Intel and what the Court of Justice can do to rebalance the assessment of rebates
This article provides arguments why in Intel the General Court is wrong in denying the relevance of the effects-based approach for the assessment of exclusivity rebates. Conditional rebates, including exclusivity rebates, and single branding/exclusive purchasing and tying obligations, should not be dealt with under a “by object” standard once the firm in question is dominant. Such treatment is not justified in view of the possible efficiencies, it would undermine the consistent application of Articles 101 and 102 in view of the similarities of the possible effects of the various rebate systems and obligations, and it would discourage pro-competitive agreements and conduct by both dominant and non-dominant firms. The goal of EU competition law is to protect competition for the benefit of consumers, not to protect competitors against competition, even if this competition is waged by a dominant firm. The Court of Justice can repair the damage to a consistent and proper application of Article 102 by confirming the effects-based approach, including the useful role that the “as efficient competitor test” can and should play as part of that approach, for the assessment of conditional rebates, including exclusivity rebates.
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