Intel and article 102 TFEU case law: making sense of a perpetual controversy

In June 2014, the General Court of the EU delivered its judgment in Intel. The debates to which it has given rise in less than six months suggest that the controversy about the legal treatment of exclusive dealing and rebates under Article 102 TFEU is still very much alive. This piece seeks to make sense of the persistence of academic and non-academic discussions around the question. It appears that the real reasons behind the contentious status of the relevant case law are more limited in their nature and scope than commonly assumed. Ongoing disagreements are merely the manifestation of what can be termed a ‘friction’ in the case law. If rulings like Intel (and previous ones like Michelin II and British Airways) are contested, this is so because they are difficult to reconcile with other judgments addressing the same or comparable issues. First, the case law on, respectively, article 101 and 102 TFEU is based on mutually incompatible premises. Secondly, and to the extent that there is no reason to presume that exclusivity and rebate schemes are implemented for anticompetitive purposes and/or to assume that they harm the competitive process, they would be assessed more sensibly under a standard – as ‘margin squeeze’ abuses and selective price cuts already are

Restrictions on innovation in EU competition law

This paper discusses, in light of the practice of the European Commission, the different ways in which innovation considerations can be introduced in EU competition law. In some cases, such considerations have played an indirect role in the analysis. These are instances in which harm to innovation has been presumed or inferred by proxy from the effects of a practice on the competitive process (for instance, the foreclosure of a rival or the creation of a near monopoly). It is difficult to see anything controversial, or parameter-specific, in these cases. They reflect the approach to contemporary enforcement, which revolves essentially around the analysis of markets and does not require direct evidence of the impact of a practice on, inter alia, prices, output or product quality. Innovation-related arguments may also be introduced as an alternative to the orthodox approach to enforcement. For instance, they may be introduced in lieu of foreclosure analysis in a case where intervention requires evidence of an exclusionary effect. Instead of showing that the practice would lead to foreclosure, the authority or claimant would claim that the practice reduces the rate of innovation. It is submitted that there is no room in EU competition law for the direct introduction of innovation considerations

State aid as a tool to achieve technology neutrality - Abertis Telecom, SA and Retevisión I, SA v commission - case T-541/13 - annotation by Pablo Ibáñez Colomo

In Abertis (a representative judgment of a saga of similar cases), the General Court dismissed an action for annulment against a Commission decision finding that the measures in support for the deployment of a digital terrestrial television network in Spain amounted to unlawful and incompatible State aid. According to the Commission, the support measures were not granted in accordance with the principle of technology neutrality, insofar as they excluded technologies such as satellite. In addition, it held that the Member State could not invoke the Altmark case law, or Article 106(2) TFEU, insofar as the operators had not been entrusted with a public service mission. This is so in spite of the fact that the Spanish Telecommunications Act explicitly referred to the transmission of broadcasting signals as a service of general economic interest. The analysis of the Commission was, by and large, validated by the General Court. The appeal against the judgment, in this and in similar cases, is currently pending

Post Danmark II: the emergence of a distinct ‘effects-based’ approach to Article 102 TFEU

A system of standardised, ‘all-unit’ rebates implemented by a dominant firm is contrary to Article 102 TFEU if an analysis of the nature and operation of the scheme and of the features of the relevant market reveals that it is likely to have an exclusionary effect

Article 101 TFEU and market integration

Market integration is an objective of Article 101 TFEU. As a result, agreements aimed at partitioning national markets are in principle restrictive of competition by object. The case law on this point has been consistent since Consten-Grundig. Making sense of it, however, remains a challenge. The purpose of this piece is to show, first, how the methodological approach followed by the Court of Justice changes when market integration considerations are at stake. Secondly, it explains why and when restrictions on cross-border trade have been found not to restrict competition by object within the meaning of Article 101(1) TFEU. An agreement aimed at partitioning national markets is not as such contrary to Article 101(1) TFEU if the analysis of the counterfactual reveals that it does not restrict inter-brand and/or intra-brand competition that would have existed in its absence. It is possible to think of three scenarios in this regard: (i) an agreement may be objectively necessary to achieve the aims sought by the parties; (ii) a clause may be objectively necessary for an agreement and (iii) competition is precluded by the underlying regulatory context (as is the case, in particular, when the exercise of intellectual property rights is at stake)

EU competition law in the regulated network industries

This piece considers the interface between EU competition law and the regulation of network industries. The two have been transformed as a result of their interactions. It is difficult to make sense of contemporary EU competition law without taking into account the consequences that the liberalisation process has had on it. Similarly, regulation sees EU competition law as a model and an aspiration. In this sense, the two disciplines can be said to be mutually compatible. In spite of the compatibility between EU competition law and sector-specific regulation, there is tension between them. The objectives of the two are not identical. Regulation is conceived to undermine the position of the incumbent and to introduce fragmentation. EU competition law, on the other hand, seeks to preserve the competitive constraints to which firms are subject. As a consequence of this tension, the substantive standards in EU competition law may vary to accommodate the features and demands of network industries. Finally, it appears that EU competition law and sector-specific regulation have a complementary relationship. Sectoral regimes often lack the tools to achieve their objectives. The substantive scope of regulation may be limited, or the range of measures insufficient to address all concerns. EU competition law is a versatile instrument that can remedy some of these gaps. It has proved to be an effective tool to preserve fragmentation in liberalised markets and to manage technological change

Copyright licensing and the EU digital single market strategy

In May 2015, the European Commission launched an ambitious Digital Single Market Strategy. One of the objectives of this agenda is to ensure that copyright-protected content is accessible across borders by end-users. The achievement of this goal requires the review of national copyright regimes to ease the cross-border transmission of content and the enforcement of EU competition rules. This piece explains the principles applying to the territorial licensing of copyright-protected content against the background of the Strategy and the proposals for legislative reform. As a matter of principle, it is lawful under EU competition law to grant an exclusive territorial licence to a single operator in a given Member State, and thus to prohibit the transmission of the same content by others in the territory subject to the licence. In certain circumstances, however, these agreements may be found to be contrary to Article 101(1) TFEU. The piece places an emphasis on the analysis of the Murphy case and provides the context to understand the ongoing proceedings against the ‘Big Six’ Hollywood major studios and Sky UK

Towards more competition in pay TV services?the commission investigates agreements betweenHollywood major studios and broadcasters

There is no real cross-border competition for pay TV services in the EU. Within the UK, hundreds of thousands of expatriates have to turn to local options (such as BT, Sky or Virgin) if they want to subscribe to a premium service giving access to top sports events and recent cinema releases

Calidad de servicio en el proceso de alojamiento turístico: una aproximación en función del cliente interno-trabajador, la categoría del hotel y la localización

Universidad de Sevilla. Grado en Turism