Minutes ago the General Court introduced its Judgment in Intel v Commission ( T-286/ 09) dismissing the appeal in its totality and maintaining the 1.06 billion euros fine.As I noted to Bloomberg a long period of time back, the ECJ’s Tomra Judgment had actually blazed a trail for the Commission’s success in this case with regard to the substantive arguments at concern. Undoubtedly, the Judgment turn to Tomra in numerous occassions to support the key proposal that when a commitment system is demonstrated there is no requirement to reveal effects by means of an as efficient rival (AEC) test (see generally para. 145; I have actually found a number of other suggestions to Tomra in paras: 72, 73, 77, 78, 91, 97, 103, 117, 119, 120, 132, 153, 176, 182, 184, 193, 527 or 998, plus a number of more to AG Mazak’s Viewpoint because case)
The General Court has in fact likewise dismissed the procedural issues previously recognized by the Ombudsman, ruling that there was no procedural irregularity, which even if there had in fact been one it would not have really affected the result of the case (paras. 601-664).
The Judgment has in fact not yet been exposed is readily available here. [Remember: this post was at first composed in the light of the Court’s News release and was subsequently updated following a very first really glimpse at the real Judgment] I’ve just had the possibility to look it rapidly, however a look suffices to expose the Judgment’s probably effect on the law on abuse of dominace and to expect that this judgment will no doubt stir many disagreements in the coming weeks and months.The Court has found that the refunds are issue were” exclusivity refunds “and declared that these,” when given by an endeavor in a dominant position are, by their very nature, efficient in restricting competition and foreclosing competitors “. The Judgment specifies that in the face of such rebates it is not required to expose outcome on a case-by-case basis, and that” the Commission was not required to make an assessment of the circumstanced of the case in order to reveal that refunds truly or potantially had the result of foreclosing competitors from the market “. Versus this background the Court plainly declines the applicability of the” as reliable rival test”. A similar approach is performed with regard to the conditional payments authorized to a number of computer manufacturers.Key to the Court’s thinking is the principle that” a foreclosure result takes place not just where access to the marketplace is made challenging for rivals. Undoubtedly, it suffices thatthat access be made harder”.( paras 88 and 149). According to para 150 the as reliable rival test” only makes it possible to confirm the hypothesis that access to the marketplace has actually been made challenging and not to remove the possibility that it has been made harder”. In para 152 the Court differentiates Intel from previous cases where the as effective competitor test had been a key requirement( especially TeliaSonera, Deutsche Telekom and Post Danmark) by observing that” those cases concerned margin capture practices or low rate practices) “which suggests that a price-cost comparison was needed. According tothis para.” [a] rate can not be prohibited in itself.Nevertheless, when itcomes to an exclusivity refund, it is the condition of unique or quasi-exclusive supply to which its grant is subject rather than the quantity of the refund which makes it violent”. In para. 153 the Court once again resorts to Tomra(” which postdates” the above mentioned Judgments) to support its view that no results examination is needed.The Judgment offers directly with the supposed incompatibility of this method and the Commission’s Support paper. In paras. 154-161 the Court describes basically that it is” not needed tothink about whether the contested decision is in line with the Post 82 Assistance “( 157 )because the latter only set issues for cases began following its adoption whereas the Intel assessment was presently at an innovative stage already (paras. 155-156). According to the Court, the as reliable rival test pictured in the Assistance paper was simply relied on by the Commission” for the sake of efficiency”. In spite of the clear declaration of principle regarding the no requirement to reveal effects, the Court has in fact also participated in an extensive case by case evaluation of both the refunds and the conditional payments and concluded that” even supposing that the Commission was required to show on a case by case basis that the exclusivity refunds and payments offered to Dell, HP, Lenovo and Media-Saturn can limiting competitors, the Commission demonstrated that ability to the requisite legal requirement in its analysis of the facts of the case “. This “simply in case” review is what discusses the lenght of the Judgment (283 pages in English ). It also puts the Commission in a far much better position concerning an ultimate appeal, for even if the ECJ were to quash the GC’s conclusions that effects didn’t require to be developed (the upcoming Post Danmark II Preliminary Judgment will tell us whether that is or not likely to occur ), the accurate evaluation of the case -beyond the scope of review of the ECJ-would be probably to stand.Even if in some method expected, this is a very vital success for the Commission. The main concern connects to how this Judgment will impact future post-Guidance paper enforcement. Source