Jan 6, 2023The Supreme Court, by the impugned order, upheld the order passed by the NCLAT. Then, the petitioner, by the instant petition, sought a review
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Ag Wahl’s Intel Opinion
AG Wahl’s opinion comes as part of Intel’s appeal to the ECJ – and, while not binding, the ECJ follows attorney general opinions in around three-quarters of its judgments.
AG Wahl, strikingly, finds the Commission and GC wrong on five of Intel’s six grounds of appeal.
Significantly, AG Wahl’s opinion looks again at the case law on which the Commiss.
Background
The Intelcase in 2009 led to the Commission imposing a fine on Intel of €1.06bn (the largest single fine imposed by a competition regulator on an individual company) in respect of rebates and other “naked restrictions” which the Commission found had been intended to exclude competition by Intel’s rival, AMD, in the manufacture of a particular type .
The 2008 Enforcement Priorities Guidance Paper
The approach adopted by the EU courts was widely criticised (in particular in the 2005 EAGCP report, authored by leading academic economists), on the basis that loyalty rebates by dominant undertakings could have procompetitive effects, and a detailed economic analysis was therefore required on a case-by-case basis to determine their legality.
The .
The Intel Decision
When the Commission issued its decision against Intel in 2009, it was clear that it was not intending to depart from its prior decisional practice.
The Commission found Intel guilty of two separate infringements intended to freeze out AMD: 1. rebates conditional on major Intel customers buying all or the vast majority of their x86 CPUs from Intel t.
The Legality of Rebates by Dominant Companies Prior to Intel
Over the last 35 years, the extent to which dominant companies are entitled to offer rebates to their customers has been an ongoing area of controversy.
The jurisprudence of the Commission and EU courts leading up to the Commission’s Inteldecision in 2009 had tended to favour a form-based, over an effects-based, approach in assessing the legality o.
The Status of Loyalty Rebates Following The Commission’s Intel Decision
The requirement of a more effects-based approach was evident in the ECJ’s rulings in TeliaSonera (C-52/09) and Post Danmark I(C-209/10) in 2014.
These cases concerned pricing abuses rather than exclusivity rebates, and applied the AEC test to establish whether the prices were effectively predatory.
Many considered these judgments indicative that th.
