Commission v Intel Corporation—Court of Justice provides clarity on loyalty rebates (Commission v Intel Corporation)
Competition analysis: On 24 October 2024, the Court of Justice delivered its long-awaited judgment in Commission v Intel Corporation (Case C-240/22 P). In a high-profile finding against the Commission, the case focused on the application of Article 102 TFEU and the ‘as efficient competitor’ (AEC) test to exclusivity rebates. The judgment is notable in light of the EC draft Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings that were published shortly beforehand. The Guidelines attribute a presumption of likely exclusionary conduct to rebates of the type adopted by Intel between 2002 and 2007. Significantly, the Court of Justice judgment appears to reverse this by adopting an effects-based approach. It affirmed the General Court’s conclusion that loyalty rebates provided by a dominant entity are not per se abusive. Rather, a full assessment of their actual or potential effects on competition must be conducted. For Intel, a US company that designs, manufactures and sells processors and other semiconductor components, the judgment upholds the annulment of a EUR 1.06bn fine by the General Court (Intel v Commission, T-286/09 RENV) and partially resolves a 24-year-long saga on its conduct in the market for x86 processors. Written by Timothy McIver, partner at Debevoise & Plimpton LLP.