The Intel saga – implications for the implementation of the As Efficient Competitor Test in rebate cases*
Benno Buehler Charles River Associates, Brussels, Belgium

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Mikaël Hervé Charles River Associates, London, UK

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After the 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. This article takes stock of the guidance contained in the two latest Intel Judgments and draws conclusions for the competition assessment of loyalty rebates in the future. The conclusion drawn is that after Intel, the assessment of loyalty rebate cases will: (i) hinge on the assessment of foreclosure effects, which in turn (ii) will be driven by the AECT.

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