Judgment of 6 September 2017, Intel v Commission, C‑413/14 P
On 6 September 2017, the Court of Justice of the European Union delivered the long-awaited Intel judgment. This case was strongly debated as it concerns major legal issues related to the granting of exclusivity rebates by a dominant undertaking. In its judgment, the Court gave a direct answer to some of these questions, but many others were left open-ended.
This article aims at providing an overview of the issues associated with the presumption that exclusivity or loyalty rebates (such as those in the Intel case) are capable of restricting competition. In particular, the article scrutinizes the issues related to the transfer of the burden of proof from the European Commission to the dominant undertaking, in the context of the said presumption characterized by the Court as a rebuttable one.
After examining the development of the Intel case, the article addresses the question of what the actual requisite degree of likelihood of anticompetitive harm that has to be proven by the Commission with respect to exclusivity or loyalty rebates is in order for the Commission to be able to establish the existence of abuse of dominance. Next, the article deals with the “switching” of the burden of proof between the Commission and the dominant undertaking (“the game of proof”) in the context of the rebuttable character of the presumption and in particular, the question of the level of evidence that the dominant undertaking is required to meet so as to rebut the presumption and to “transfer back” to the Commission the burden of proof within the administrative procedure. The article puts forward the position that if a dominant undertaking succeeds in giving rise to a reasonable doubt that the conduct scrutinized is not capable of restricting competition, then the burden of proof is transferred back to the Commission. Lastly, the article examines the non-exhaustive list of tools and instruments at the disposal of the dominant undertaking provided in an implicit manner by the Court that enable such an undertaking to rebut the presumption that the applied rebate scheme is capable of having exclusionary effects, special attention being given to the “as efficient competitor test”.
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 Référendaire at the Court of Justice of the European Union. The views and opinions set out in this article are those of the author and do not reflect the position of the institution.