- The EU Court of Justice—the EU’s highest court—has handed down a judgment unexpectedly requiring its junior counterpart, the General Court, to revisit points in the case against Intel for allegedly anti-competitive rebates on computer processors.
- The case requires the General Court to revisit its analysis of the use of an additional test—known as the As Efficient Competitor Test (AECT)—that seeks to estimate efficiency direct in order to define the scope of rules, in contrast with a more rules-based approach that prevailed in earlier cases.
- Here, the EU Commission had applied the AECT, but the General Court found that it need not have done so. Intel challenged the way in which the test was applied—and the Court of Justice found error in not addressing these arguments, in the specific context of the Commission having chosen to apply the test in its investigation.
- Today’s case is terse and does little more than ask the General Court to revisit the point. Therefore, it sets few points of principle, other than requirements for procedural propriety in addressing relevant points when they are raised.
- The case contains a thimbleful of language, derived from the Advocate General’s earlier briefing to the court, that is sympathetic to the cause that competition law should not protect inefficiency. What that means in practice is likely to remain as controversial and unresolved as ever, but expect the language to be closely watched, especially in legal analysis of dominant pricing policies.
Please find the full brief here.