As the European Commission announced today its largest-ever fine of €1.06 billion on chip maker Intel Corporation, the US is gearing up to take a more aggressive tack towards redressing monopolistic practices.
According to antitrust partner Bernardine Adkins, it could spell a new era of coordinated and aggressive antitrust enforcement by the competition authorities on both sides of the Atlantic. Global businesses could now find themselves facing a united front of US and EU competition authorities.
Following a six-year investigation into the IT giant Intel's behaviour, Competition Commissioner Neelie Kroes concluded that its practices constituted a "serious and sustained violation of the EU antitrust rules". She found that for a period of five years (from 2002 to 2007), when Intel held at least 70% of global market share, it had exploited its dominant position with a deliberate strategy to keep competitors out of the market.
According to the Commission, Intel did this through illegal loyalty-inducing rebates and by paying manufacturers and retailers to delay the launch and restrict the commercialisation of competitors' products. This occurred at a time when Intel's only significant rival – Advanced Micro Devices Inc – was a growing threat to Intel's position.
The news follows an announcement this week by Christine Varney. The Obama-appointed head of the US Department of Justice's antitrust division said that the Bush administration had "lost sight of an ultimate goal of antitrust laws – the protection of consumer welfare".
Bernardine adds, "There is mounting evidence to suggest the Commission, the Federal Trade Commission and the DOJ are taking a much more collaborative approach towards the investigation of anti-competitive practices. The EU Commission is, however, considerably ahead of the game – particularly in the IT sector, in view of its ongoing investigations into Rambus, Qualcomm, IP Com and IBM respectively."
"This is a strong reminder to companies to monitor their pricing practices in both the EU and in the US. Businesses should question whether their practices expose them to any risks of challenge and ensure their procedures are adequate so suspect practices do not arise or are quickly detected. The publicity that this record fine will stir up may well result in more challenges being made to the pricing practices of companies with large market shares. The double jeopardy rule won't apply – companies will face sanctions in both the US and EU if found to be engaging in anti-competitive practices."
Although the Commission's decision is based on established case law, Intel plans to appeal the record fine. It maintains that its rebate program is legal and actually benefits consumers by lowering prices.