On 6 September 2017, the Court of Justice of the European Union ("CJEU") set aside the General Court's ("GC") ruling in a case concerning abuse of dominance by the use of loyalty rebates by Intel Corporation ("Intel"), an American microchip manufacturer. The CJEU referred the case back to the GC for re-examination as to whether the rebates at issue were capable of restricting competition.
In May 2009, the Commission fined Intel EUR 1.06 billion for having abused its dominant position on the market for x86 central processing units ("CPUs") by adopting measures aimed at foreclosing its competitor, Advanced Micro Devices, from the market. The measures consisted of, inter alia, the granting of rebates to four computer manufacturers on condition that they bought all, or almost all, of their CPUs from Intel. Intel appealed the decision to the GC, which dismissed the appeal in its entirety. The GC found that the rebates were so called "exclusivity rebates", which are by their very nature capable of restricting competition, and that there was thus no need to prove that such rebates were capable to restrict competition in the specific case. In particular, the GC concluded that there was no need to use the so called As Efficient Competitor test ("AEC test") (i.e. the testing of whether the rebates were capable of foreclosing an as efficient competitor). Intel appealed the GC's judgment to the CJEU, claiming, inter alia, that the GC failed to examine the rebates in the light of all the circumstances of the case. In October 2016, Advocate General Wahl ("AG Wahl") recommended the CJEU to uphold Intel's appeal. According to AG Wahl, the GC erred on multiple points, among other things in finding that "exclusivity rebates" constitute a separate and unique category of rebates that require no consideration of all the circumstances in order to establish an abuse of dominance.
In its judgment, the CJEU points out that the Commission, even though it considered the rebates at issue to be by their very nature capable to restrict competition, nevertheless made an assessment of all the circumstances of the case. According to that assessment, the rebates were capable of foreclosing an as efficient competitor from the market. Since the Commission applied the AEC test, the GC should have examined all arguments put forward by Intel concerning that test. As the GC failed to do this, the CJEU set aside the judgment and referred the case back to the GC. The CJEU, however, rejected arguments from Intel concerning lack of jurisdiction and the rights of defense.
The case has now been referred back to the GC which will have to re-examine the question of whether the rebates concerned have the capability of restricting competition.