Even though this (very short) reaction piece – which can be found here – focuses mainly on the procedural part of the judgment, it also comments on more substantive matters.
- As regards extraterritoriality, he notes that AG Wahl had argued that it should be unlawful to bring together conduct which could have had no effect in the EU (e.g. a contract between Intel and an OEM in Asia, with products destined for Asia), with conduct that could have EU effects (e.g. a contract with products destined for the EU). The Court disagreed: the “conduct … viewed as a whole” should be taken into consideration to avoid “an artificial fragmentation of comprehensive anticompetitive conduct”.
- As regards the treatment of exclusive rebates, he argues that we have learned less than many had hoped.
On the one hand, the CJEU seems to be making a procedural point: if the Commission relied on economic evidence, then the General Court should examine it. But other paragraphs suggest this is a substantive issue, with the Court making some incremental, but important changes to the case law on rebates, and in particular Hoffmann La Roche. From this perspective, the Court seems to require the Commission to assess the effects of the anticompetitive conduct whenever a defendant submits evidence that its conduct does not have foreclosure effects: ‘This looks rather less like a procedural requirement on the General Court, and more a substantive requirement on the Commission, assuming a defendant brings forward evidence that its conduct was not capable of foreclosing competition. And which defendant would not do that?’
However, a lot is left to be decided – particularly as regards the type of analysis that the Commission will be required to undertake: ‘The kind of evidence required could be a few pages of analysis backed up by contemporaneous documents, or the type of voluminous economic analysis contained in the 2009 Intel decision itself.’
In short, the author seems to identify two possible interpretations of this decision: either it makes a purely procedural point, or it may have substantive implications. If the latter, it is unclear what is the extent to which the law on rebates has been changed, and what the practical implications may be for the assessment of rebates by a dominant undertaking in the future.