Intel Judgment: Clarity From The ECJ On Exclusivity Rebates As An Abuse

The European Court of Justice (ECJ) yesterday delivered its judgment in relation to Intel's appeal from the General Court, and has set aside the General Court's judgment on the basis that it failed to consider certain arguments advanced by Intel.

The General Court had previously upheld the €1.06 billion fine imposed upon Intel by the European Commission (the "Commission") for abuses of dominance, including in relation to Intel's use of exclusivity or 'fidelity' rebates.

In setting aside the General Court's judgment, the ECJ has clarified that:

• during the course of an investigation, a dominant firm is able to present evidence that its use of exclusivity rebates is not capable of foreclosing competitors;