Distinguishing Legitimate Price Competition from Unlawful Exclusionary Behaviour: Reconciling and Rationalising the Case-Law
This paper analyses EU cases on abuse of a dominant position dealing with low cost pricing by a dominant firm to determine: (i) whether they are consistent with each other and the goals underpinning the EU competition laws: (ii) whether any evolution in the case-law can be detected and (iii) what changes can be anticipated in the future and would be desirable to ensure the law’s coherence. In particular, it considers the implications of the judgment of the General Court in Intel which has reignited the debate about the philosophical basis of EU competition law and the question of how ‘abusive’ conduct can or should be identified. The paper concludes that there is a need to rationalise the case law and for the EU Courts to explain more fully the policy underpinning the cases, when it is legitimate to rely on presumptions of illegality in the context of Article 102, how the various types of abuse relate to each other and how case-law under Article 101 can, or should, impact on the development of principles under Article 102. As the Court of Justice will have the opportunity to address many of these issues in the appeal from the General Court’s judgment in Intel, the paper examines some of the important issues which require assessment in that judgment.
Case T-286/09 Intel v Commission—The Judgment of the General Court: All Steps Backward and No Steps Forward
On 12 June 2014, the General Court (the Court) issued a judgment upholding in its entirety the European Commission’s decision of 13 May 2009 imposing a fine of €1.06 billion on Intel for abusing its dominant position in the market for x86 central processing units (CPUs).1 In its ruling on the substantive issues, the Court upheld the Commission’s findings that Intel, which during the relevant period had held a market share of about 70 per cent in the global market for x86 CPUs, had granted rebates and made payments to four original equipment manufacturers (OEMs)—Dell, HP, NEC and Lenovo—and the retailer MSH that were conditioned on exclusivity or quasi-exclusivity, and had made cash payments to HP, Acer and Lenovo—characterised as “naked restrictions” by the Commission—conditioned on those OEMs cancelling or postponing the launch, or restricting the distribution, of personal computers incorporating x86 CPUs supplied by Intel’s only competitor, Advanced Micro Devices (AMD). The Court further upheld the Commission’s finding that both abuses constituted a long-term comprehensive strategy to foreclose AMD which was implemented by Intel from October 2002 to December 2007.2 The Court’s judgment has confirmed, inter alia, that there need be no analysis of actual effects or consumer harm to determine the anticompetitive effects of discounts conditioned on exclusivity or quasi-exclusivity, even in an ex post case and that there is no de minimis threshold under Article 102. It also found that there is no need to establish the existence of a causal link between the discount and the customer’s purchasing decision, and rejected the need
Discretionary Powers: A Legal Study of Official Discretion
One noticeable feature of modern legal systems is the extent to which power is conferred upon government officials and agencies to be exercized at their discretion, according to policy considerations, rather than according to precise legal standards. This book is a legal and jurisprudential analysis of discretionary power in modern legal systems, with particular emphasis on the consequences of discretion in the relationship between the individual and the state.