This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.
I was in Luxembourg for the Intel ECJ hearing today. This is the final appeal against their 1 Billion Euro fine in 2009, upheld by the General Court in 2014. The night before I watched the England v Slovakia game in the hotel bar, a fairly dull game with no real theatre or decisive execution. The hearing this morning, by contrast, had plenty of both.
The case was in the Grand Chamber i.e. 15 judges instead of the more typical 5. And with Wahl as Advocate General – not a man to mince his words, and he lived up to it here. The hearing room was packed.
There are three issues in this case of wide application, two of them being extra-territoriality and issues of fair process and rights of the defence. The Court’s questioning on those was strong and directed enough.
But Wahl saved his strongest fire for the rebates and exclusionary abuse issue. I have never seen such forthright, shall we say, questioning from an AG. It is certainly unusual. He said he could think of no case where such a strict approach had been taken – was this the tip of the iceberg? He really drilled down on coverage, i.e. the question as to whether it matters how much of the market a company is (allegedly) foreclosing. He asked, almost in disbelief, whether it had any importance once dominance and exclusivity were established. It was pretty clear to those of us observing that (a) he thought the Commission didn’t believe it mattered, and (b) he had little respect for that view.
There were two areas of rebates / exclusionary abuse where he observed a gulf opening up between the General Court and the Commission. First, what is relevant to the analysis and what is irrelevant – he observed that the General Court says a whole lot of things are irrelevant: coverage, actual effects, duration, whether exclusivity is whole or partial etc, whereas the Commission was arguing exclusivity rebates were “generally” abusive. Second, the famous “as efficient competitor” (AEC) test where he understood the General Court to be saying applying this economic test was never useful and even if it produced a positive result that wouldn’t mean anything, whereas the Commission clearly thought it was useful enough to include it in its Guidance Paper. And the Court of Justice had said on occasion it could be useful in Post Danmark II.
Wahl was also clearly not impressed by the Commission running two different standards – one for enforcement (effects-based, viz Guidance Paper) and one for litigation (following Court case law). Wahl was supported by the Irish judge, Judge Regan, who asked in a final question from the court whether the Court could really be “comfortable” with a fine of this magnitude without the “appropriate analysis of all the circumstances which would go with an effects based approach”. Ouch !
This was by all accounts direct and penetrating questioning. It made excellent viewing, certainly much better than the football. The only downside is we’ll have to wait longer for the result…..