The Intel saga – implications for the implementation of the As Efficient Competitor Test in rebate cases

After the Court of Justice for the European Union (CJEU) Intel Judgment, one critical open question was how demanding the Court will be in the judicial review of the assessment of anticompetitive effects of loyalty rebates. With its 2022 judgment, the GCEU emphasized the very high standard of proof and annulled the EC’s Intel Decision based on the failure to meet this standard in several respects. In this article published in Competition Law & Policy Debate, Benno Buehler and Mikaël Hervé take stock of the guidance contained in the two latest Intel Judgments and draw conclusions for the competition assessment of loyalty rebates in the future. Based on the latest case law, the assessment of loyalty rebate cases will hinge on the assessment of foreclosure effects, which in turn will be driven by the AECT. Yet, the EC has not embraced the CJEU’s endorsement of the AEC principle, and announced its intention to appeal the GCEU 2022 judgment – the Intel Saga will go on.