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Case 1840 opinion ag talk8/13/2023 ![]() ![]() This assessment involves an evaluation of the particular context of the rebate (ibid). In order to determine whether a practice is restrictive by object, it is necessary to consider whether there is ‘any other plausible explanation for that conduct’ (para 82). An assessment of ‘all the circumstances’ appears to be necessary in all cases involving rebate schemes. In line with consensus positions, the Opinion concludes that rebate schemes, irrespective of their form, appear to be comparable in their nature, purpose and potential effects (see para 93: ‘ there is no objective reason why should receive a stricter treatment than those falling under category 3’).Īs a corollary, the qualification of loyalty rebates as a category akin to a restriction of competition by object (para 82) seems difficult to sustain. Would it not be better to adjust the law so that it reflects business realities and the actual analysis performed in individual cases, asks AG Wahl? As a result, there is a mismatch between the theory of the case law and the actual practice of the EU courts and the Commission. In his analysis, AG Wahl conveys a very important point: the existing categorisation of rebate schemes (‘loyalty’, ‘loyalty-inducing’, ‘exclusivity’) is somewhat artificial (see for instance para 100: ‘ the difference between the rebates at issue in Tomra and Hoffmann-La Roche is one of degree rather than kind’).įor better or worse, business realities do not fit into neatly defined pigeon holes. Subsequent case law, including Michelin I and British Airways, also carefully assessed ‘all the circumstances’. It is therefore difficult to say that the Court did not engage in an analysis of ‘all the circumstances’ (see paras 65-72 of the Opinion). On the other, it examined carefully the rebate scheme applied by Roche. ![]() On the one hand, it held that loyalty rebates are restrictive by object. ![]() The prohibition in that case was deemed to apply, inter alia, to ‘discounts conditional on the customer’s obtaining all or most of its requirements – whether the quantity of its purchases be large or small – from the undertaking in a dominant position’.ĪG Wahl reads Hoffmann-La Roche beyond paras 89-90 and comes to the conclusion that there is some tension between what the Court said and actually did. In Hoffmann-La Roche the Court of Justice held, in paras 89-90, that exclusive dealing and loyalty rebates are by object infringements. For reasons of legal certainty and consistency, the view that exclusive dealing and loyalty rebates are abusive by their very nature is a source of frictions that had to be addressed sooner or later. AG Wahl cuts to the chase and shows why the legal treatment of exclusive dealing and loyalty rebates has simply become very difficult to sustain. The virtue of the opinion, in my view, is that it focuses on the issues that matter, and this, from a legal perspective. Indeed, AG Wahl places much emphasis on the issue of legal certainty. This first reaction focuses on this question.īeyond the specifics of the case, this opinion would, if followed, be a victory for all involved: first and foremost, for legal consistency secondly, for the Commission, which sees the remarkable efforts undertaken in the past decade validated and finally for dominant firms, which would be subject to a more predictable framework. In this regard, the Opinion suggests that an analysis of the likely effects of these practices is necessary to apply Article 102 TFEU. In any event, the opinion was awaited not so much for the issues specific to the case, but for its position in relation to the legal treatment of exclusive dealing and loyalty rebates. The Advocate General proposes to set aside the first instance judgment in the case and to refer the case back to the General Court. The big news today is the release of AG Wahl’s Opinion in Intel. ![]()
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