Europe's top court, the Luxembourg-based Court of Justice of the European Union (ECJ), has ordered a lower-court to re-examine the US chipmaker Intel’s appeal against a 1.06-billion-euro EU antitrust fine for abuse of a dominant position. The EU Court of Justice set aside the judgment of the EU General Court of 12 June 2014, which affirmed the EU Commission’s decision of 13 May 2009 imposing a fine of € 1.06 billion on Intel for allegedly granting rebates and payments to customers conditional on exclusivity. The General Court will re-examine the 2009 decision, particularly if regulators had sufficiently proved that the rebates had harmed competition. 

Qualcomm and Google

The decision, which was hotly anticipated, could have potential implications for Qualcomm, a similar case involving rebates and Google, which is expected to announce its appeal of the massive EUR 2.4 billion fine imposed on the company by the EU Commission this year.  By sending the case back to the EU General Court, the Court of Justice effectively sent a message to the Commission that it will have to look more closely at effects-based arguments, thereby raising the burden of proof on investigators and shifting it away from the company in question. 

As efficient competitor

The ECJ referred the case back to the General Court in order for it to examine the arguments put forward by Intel concerning the capacity of the rebates at issue to restrict competition. Intel is one of the longest-running cases in the commission’s history and one of the few to reach the EU’s top court. 'The Court's decision to order the General Court to examine Intel's arguments on the Commissions assessment of the as efficient competitor (ACE) test is to be welcomed. If the Commission includes in its Decision 200 pages of economic assessment to bolster its findings, it must be held accountable for any errors therein. Intel now has to continue its court battle, and considering the nature and complexity of its challenge of the ACE test, I would be surprised if a judgment came out before the 10th anniversary of the lodging of Intel's appeal,' said Brussels-based Baker Botts partner Georg Berrisch.

Territorial jurisdiction

However, the ECJ rejected Intel's claim that the European Commission lacked territorial jurisdiction to punish the company for its agreements with Chinese computer makers. It also found that procedural irregularities such as failure to record a witness interview had affected its rights of defence.

Van Bael & Bellis

Brussels law firm Van Bael & Bellis acted for the Association for Competitive Technology (ACT) in support of Intel’s challenge to the Commission's 2009 decision. The Association for Competitive Technology (ACT), a trade association representing more than 5,000 IT firms worldwide, was represented by Van Bael & Bellis partners Jean-François Bellis and Tim Kasten.