ANTITRUST | The ECJ on the “as-efficient competitor test” for establishing an abuse of dominant position

On 24 October 2024, the Court of Justice (“ECJ”) issued its judgment in case  C‑240/22 (P – Commission v Intel Corporation). The case concerned the record fine imposed by the EC on Intel Corp. (“Intel”) in 2009 for having abused its dominant position in the x86 processor market by offering loyalty rebates to its clients and distributors (the “Conduct”). The judgment followed the appeal (“Appeal”) brought by the EC against the General Court (“GC”) ruling annulling the fine issued by the EC. In the Appeal, the EC claimed that the GC’s review of its assessments on the as-efficient competitor test (“AEC test”) was tainted by procedural irregularities, errors of law and distortion of evidence. With this Judgment, the ECJ dismissed the Appeal. Having remarked that it was up to the GC to examine any argument aimed at challenging the EC’s assessments on the AEC test, the ECJ clarified that such arguments might target the compatibility of the EC’s assessment with the principles concerning the AEC test, as well as the probative value of the factual elements on which the EC’s assessment relied. In this case, the ECJ considered that the EC’s evaluation was flawed because it had failed to provide sufficient evidence on the foreclosing impact of Intel’s Conduct on the relevant market.

Newsletter n. 101 – November 2024