31 January 2022

Abuse of dominant position – Economic tests
So-called naked restrictions which are practices consisting of rebates or payments offered by the dominant undertaking to the relevant OEMs in return for abstaining from specific actions, i.e. cancelling or otherwise restricting the marketing of certain products equipped with a competitor’s product, are not subject to the as efficient competitor test (AEC).
GC Case T-286/09 RENV Intel Corporation, Inc. et Association for Competitive Technology, Inc., Judgment of 26 January 2022, LawLex202200000539JBJ

Abuse of dominant position – Economic tests
Although it was held that an AEC test did necessarily have to be carried out in order to examine the foreclosure capability of all rebate systems, where the Commission has carried out an AEC test, that test is one of the factors which must be taken into account by the Commission to assess whether the rebate scheme is capable of restricting competition.
GC Case T-286/09 RENV Intel Corporation, Inc. et Association for Competitive Technology, Inc., Judgment of 26 January 2022, LawLex202200000539JBJ

Abuse of dominant position – Appreciable effect
Even if a rebate system set up by an undertaking in a dominant position on the market can be classified as a restriction of competition, since, given its nature, its restrictive effects on competition can be presumed, the fact remains that, in this respect, it is a simple presumption, and not a per se infringement of Article 102 TFEU which would relieve the Commission from examining its effects in all cases.
GC Case T-286/09 RENV Intel Corporation, Inc. et Association for Competitive Technology, Inc., Judgment of 26 January 2022, LawLex202200000539JBJ

Abuse of dominant position – Appreciable effect
Where an undertaking in a dominant position submits in the course of the administrative procedure, and provides evidence to support its claim, that its conduct did not have the capability of restricting competition and, in particular, of producing the foreclosure effects complained of, the Commission must analyze the foreclosure capability of the rebate system in the light of five criteria: (i) the extent of the undertaking’s dominant position on the relevant market, (ii) the share of the market covered by the contested practice, (iii) the conditions and arrangements for granting the rebates, (iv) their duration and their amount, and (iv) the possible existence of a strategy aimed at foreclosing competitors who are at least as efficient.
GC Case T-286/09 RENV Intel Corporation, Inc. et Association for Competitive Technology, Inc., Judgment of 26 January 2022, LawLex202200000539JBJ