On Sept. 6, 2017, the Court of Justice of the European Union (ECJ), the EU’s highest court, set aside a 2014 General Court of the EU (EGC) judgment that upheld a €1.06 billion fine imposed by the European Commission (Commission) on Intel for abuse of its monopoly position. At the heart of the ECJ’s decision was its holding that the EGC improperly failed to consider evidence presented by Intel that the challenged conduct—a loyalty rebate program—did not foreclose competition or harm customers. In so holding, the ECJ made clear that in evaluating foreclosure arguments the EGC must “examine all of the applicant’s arguments seeking to call into question the validity of the Commission’s finding,” including economic evidence of exclusionary effects in well-defined markets. Judgment of 6 Sept. 2017, Intel v. Commission, C‑413/14 P, EU:C:2017:632.
In recent years, antitrust commentators have written often about the divergent approaches to antitrust enforcement in the United States and EU, especially with respect to theories of monopolistic harm. Front and center in these discussions have been the Commission investigations and penalties levied against American tech giants, such as Google, Amazon, Apple and, of course, Intel, for allegedly abusing dominant market positions, which stand in stark contrast to the U.S. antitrust authorities’ decisions not to challenge the same or similar conduct. In fact, this column addressed the issue following the Commission’s decision to levy formal charges against Google in 2015 related to the Internet giant’s search practices, in which we underscored the differences between the Commission’s decision and the Federal Trade Commission’s decision not to challenge those very same practices, highlighting the U.S. emphasis on harm to consumers in contrast to the EU’s apparent focus on competitor harm and desire to open markets. Shepard Goldfein and James Keyte, “EU and Google: Study in Divergence for Antitrust Enforcement,” N.Y.L.J., May 12, 2015.
