The EU General Court's 2022 Intel Judgment: Back to Square One of the Intel Saga

The latest judgment of the General Court in the Intel case annulled the EU Commission’s decision from 2009 imposing a €1.06 billion fine on Intel for abusing its dominant position by offering fidelity rebate schemes (case T‑286/09 Intel v Commission ECLI:EU:T:2022:19). The judgment reaffirms the application of an “effects-based” approach which requires careful economic analysis in order to establish the abusive nature of fidelity rebates. The judgment demonstrates that the presumption that fidelity rebates are restrictions of competition by object can be rebutted by the dominant company. It also clarifies that the as efficient competitor (AEC) test is not an indispensable part of the assessment in examining the foreclosure capability of all rebate systems but can be a relevant factor where the Commission has carried it out as part of its assessment of the anticompetitive effects of the rebate schemes. This Insight seeks to examine how this clarification can be translated into concrete lessons not only for future cases but also for other cases dealing with similar issues (i.e. the Qualcomm and Google Shopping cases) and, in particular, the significance of the AEC test as a specific tool to evaluate the anticompetitive effects of fidelity rebates. The Insight concludes that the recent judgment leaves more questions than answers regarding the application of the AEC test, and that it can be seen as signalling the demise of the application of this test for future cases.