Intel Judgment - More Than One Way To Skin A Rebate?!

On 24 October 2024, the Court of Justice of the European Union (CJEU) confirmed that the European Commission's (the EC) 2009 decision, which imposed a (then record) €1.06 billion fine on Intel, was flawed as far as it found that loyalty rebates granted by Intel had anti-competitive effects. The EU top Court held that the EC wrongly relied on the presumption of the anti-competitive nature of royalty rebates and the results of its "as-efficient competitor" (AEC) test while failing to carefully consider evidence presented by Intel that challenged the EC's assessment.

While the wording of the judgment leaves some room for the debate about the presumption of the anti-competitive nature of loyalty rebates, it clearly confirms that economic evidence and the AEC test should be used to determine whether rebates are capable of foreclosing competitors from the relevant market.