In Defense of the Intel Judgment
The judgment by the General Court, on 12 June 2104, in the Case T-286/09 Intel (ECLI:EU:T:2014:547) has been one of the most controversial in recent years. It it part of the ongoing debate in EU competition law between those who seek to introduce a ‘more economic’ approach to Art 102 TFEU and break away from the formalism they perceive in the Court’s jurisprudence, and those who see the Court’s existing case law as well grounded and effective, and see the more to a ‘more economic’ approach as being a move towards unnecessary uncertainty.
I personally can see why in many cases the law should have a clear position on what its ‘theory of harm’ is in relation t particular abuses, but I have always been nervous of the demand that an Art 102 TFEU infringement should only be proven when the Commission can show that a particular level of actual harm has been proved. I take the view that it should be possible to take a position, before behaviour takes place, on whether it is likely to lawful or not; one should not have to wait and see what actually happens before lawfulness can be established. But rather than hear my views it now possible to read a very insightful and concise Editorial from the Journal of European Competition Law & Practice by Prof Richard Whish, which has been made freely available (thanks to the good folks at Chillin’ Competition for the tip).
Whish’s view, especially the point about making the law ‘administrable’, very much accords with my on and therefore I’m happy to present his argument without further comment …
Companion to Rodger & MacCulloch, Competition Law and Policy in the EU & UK, 5th Ed
The discussion of Intel judgment should be read alongside the discussion of Rebates in Chapter 4, pp 113 & 114