Intel: Back to the Future? - PowerPoint Presentation

Intel: Back to the Future? Jürgen Schindler Chillin’ Competition Conference, 25 October 2017

Intel (2017) “ where the undertaking concerned submits… that its conduct was not capable of restricting competition and, in particular, of producing the alleged foreclosure effects… the Commission is .. required to analyse, first, the extent of the undertaking’s dominant position on the relevant market and, secondly, the share of the market covered by the challenged practice, as well as the conditions and arrangements for granting the rebates in question, their duration and their amount; it is also required to assess the possible existence of a strategy aiming to exclude competitors that are at least as efficient as the dominant undertaking from the market ” p . 137- 138, Intel Corporation Inc v Commission , C-413/14 P

Intel (2017) / Continental Can (1973) “ The analysis of the capacity to foreclose is also relevant in assessing whether a system of rebates which, in principle, falls within the scope of the prohibition laid down in Article 102 TFEU, may be objectively justified. In addition, it has to be determined whether the exclusionary effect arising from such a system, which is disadvantageous for competition, may be counterbalanced, or outweighed, by advantages in terms of efficiencies… ” p . 137- 138, Intel Corporation Inc v Commission , C-413/14 P “ Articles 85 and 86 cannot be interpreted in such a way that that they contradict each other, because they serve to achieve the same aim ” p. 25 , Europemballage and Continental Can v Commission , C- 6/72

1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which … 2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void. 3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of… … which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit … Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States . Such abuse may, in particular, consist in:… Article 101 Article 102

Towards a Uniform Analytical Framework for 101/102? Market Power/Dominance Restriction/Counterfactual Consten & Grundig, AG Römer (1966) Coditel I & II (1980/1982) MasterCard (2014) Cartes Bancaires (2014) Foreclosure/Causation Continential Can (1973) Intel (AEC Test) (2017) Objective Justification/Efficiency Defense Classical objective justifications? Cartes Bancaires (2014) Intel (2017)

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