European Union judges put competition regulators on back foot over Intel case

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The Intel case centers on whether a dominant company - in any industry - abuses its commercial power by offering rebates to business customers to retain their market position.

The Court of Justice of the EU (CJEU) said the EU's General Court must re-examining the case because the General Court had erred in the way it had assessed whether Intel's rebates to computer makers were capable of restricting competition. The ultimate question that the lower court must prove is whether Intel's rebates harmed rivals like AMD or not.

The ruling raises the bar for regulators when it comes to proving wrongdoing, said Rein Wesseling, a partner at law firm Stibbe."It forces the Commission to be as economic in its approach in other cases as it did in Intel".

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In June the Commission hit Google with a €2.4bn fine over its online shopping services. It said the General Court was wrong not to examine its arguments to this effect when assessing its appeal.

However, in an eagerly awaited ruling on Wednesday (6 September), the European Court of Justice sent the case back to the lower General Court so it can examine more arguments from Intel.

They did so by making the products of a hypothetical as-efficient competitor more expensive without the rebates than Intel's with the rebates. As a result, it may also unintentionally make rules for compliance murkier.

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"The Commission takes note of today's ruling by the European Court of Justice (Case C-413/14 P) and will study the judgment carefully", a spokesperson for the European Commission said in an emailed statement. That ruling was seen then as a rebuke to Intel and a sign to the community that no company is above the rulings of the court.

In 2009 Intel was slammed with a €1bn ($1.26bn) fine for allegedly urging computer makers to use its chips over rival AMD processors through exclusivity incentives.

Intel apparently made payments to Media-Saturn on the condition that it sell only computers containing Intel's x86 CPUs. In its ruling, the court decided this case was such that the AEC test should in fact be properly evaluated by the General Court, and deferred the case back.

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Intel appealed to the General Court, which specifically deals with complaints against other European Union institutions, on the basis that the fine was excessive and should be reduced or annulled.

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