Austria: EU Court Of Justice Rules On Intel Case – Exclusivity Rebates Not Per Se Unlawful

Last Updated: 6 October 2017
Article by Günter Bauer and Robert Wagner

On 6 September 2017, the Court of Justice of the European Union ("CJEU") delivered its long-awaited judgment in the Intel case. The CJEU quashed the 2014 judgment of the General Court ("GC") which had upheld a fine of EUR 1.06 billion imposed on Intel by the European Commission ("Commission") in 2009. Intel had been accused of abusing its dominant position by granting exclusivity rebates to customers.


The judgment has important ramifications for how the Commission assesses exclusivity rebates and other practices of dominant firms and for what it needs to prove to find an abuse of a dominant position. The CJEU rejects the idea that certain categories of conduct are per se illegal and in essence advocates a more economic approach to the assessment of allegedly abusive behaviour.

Consequently, the Commission may have to engage in an often extremely detailed assessment of the potential effects of a dominant firm's conduct in order to prove an infringement of EU competition law. The CJEU's Intel judgment can also have implications for ongoing Commission investigations such as the Google and Qualcomm cases.


The leading US-based microchip manufacturer Intel granted rebates to four major computer manufacturers (Dell, Lenovo, HP and NEC) from October 2002 to December 2007 on the condition that they purchased all, or almost all, of their x86 CPUs from Intel (and, in particular, not from Intel's main competitor AMD). Similarly, Intel awarded payments to the retailer Media-Saturn Holding, which were conditioned on the latter's exclusively selling computers containing Intel's x86 CPUs.

In the relevant period, Intel had a market share of approximately 70% or more on the worldwide market for x86 CPUs.


The Commission found in May 2009 that Intel had abused its dominant position on the worldwide market for x86 CPUs by granting exclusivity rebates to customers. The Commission found that these practices had foreclosed Intel's only serious competitor, AMD, from the market. It argued, by reference to previous case law of the CJEU, that Intel's exclusivity rebates were by their very nature capable of restricting competition and, thus, unlawful.

The authority took the view that it was not required to demonstrate on the basis of an analysis of all the circumstances of the case that Intel's practices were indeed capable of foreclosing competitors from the market.

Although the Commission emphasized that the rebates at issue were abusive by their very nature, it carried out an in-depth assessment of whether the rebates were capable of foreclosing competitors. To this end, the Commission conducted an economic analysis referred to as the "As-Efficient-Competitor Test" ("AEC Test"). On the basis of this analysis, the Commission concluded that Intel's exclusivity rebates were capable of foreclosing a competitor as efficient as Intel from the market since such a hypothetical as efficient competitor would, in order to compensate an Intel customer for the loss of the exclusivity rebate, have had to offer CPUs at prices which would not have been viable.


Intel brought an action for annulment against the Commission's decision, which the GC in Luxembourg dismissed in its entirety in 2014.

In particular, the GC confirmed the Commission's view that exclusivity rebates are by their very nature abusive and that, therefore, an assessment of the capability of Intel's rebates to foreclose competitors is not necessary. Consequently, the GC refused to examine Intel's arguments against the Commission's economic analysis (i.e., the AEC Test).


In its Grand Chamber judgment of 6 September 2017, the CJEU departed from previous case law and set aside the GC's ruling. The CJEU's modifications to the case law are subtle but may have a major impact on the assessment of dominant firm behaviour by the Commission and, potentially, national competition authorities.

While the CJEU held, in reference to previous case law, that there is a presumption that exclusivity rebates granted by dominant undertakings are unlawful, the CJEU introduces an important "clarification": If the dominant undertaking concerned submits during the administrative procedure, on the basis of supporting evidence, that its conduct was not capable of restricting competition and, in particular, of foreclosing an as efficient competitor from the market, the Commission is required to assess these arguments and, ultimately, to demonstrate that the dominant firm's behaviour has indeed the capability to foreclose an as efficient competitor.

Against this background, the CJEU held that the GC was also required to examine all of Intel's arguments against the Commission's economic analysis, i.e., its AEC Test. The CJEU referred the case back to the GC, which will now have to assess, in the light of the arguments put forward by Intel, whether Intel's exclusivity rebates were capable of restricting competition.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions