The rebates, which consist in granting a lump sum discount to the ...

The rebate schemes were individualized for each customer and the thresholds related to the totalrequirements of the customer or a large proportion thereof. They were established on the basis ofestimated customer requirements and/or purchasing volumes achieved in the past, as is evident fromthe circumstances. The incentive for buying exclusively or almost exclusively from Tomra isparticularly strong where thresholds are combined with a system whereby the achievement of thebonus or a more advantageous bonus threshold benefits all purchases made by the customer in thereference period and not exclusively the purchasing volume exceeding the respective threshold.Under a retroactive system, a customer who has started buying from Tomra, which is a very likelyscenario given Tomra's strong market position, has a strong incentive to reach the threshold in orderto reduce the price of all its purchases from Tomra. This incentive increased the closer the customercame to the threshold in question. The combination of a retroactive rebate system with a thresholdor thresholds corresponding to the entire requirements or a large proportion thereof represented asignificant incentive for buying all or almost all the equipment needed from Tomra and artificiallyraised the cost of switching to a different supplier, even for a small number of units.Tomra’s economic defence focused instead on whether an efficient competitor would have beenable to compete against the rebates offered by Tomra, using an approach that was similar to the oneeventually contained in the 2009 Guidance Paper.3The General Court’s JudgementThe General Court confirmed the Commission’s decision, rejecting the need to analyse any actualforeclosure provided the conduct in question is capable of foreclosing competition.In particular the Court stated that:a rebate system which has the potential to foreclose rivals will be regarded as contrary toArticle 102 if it is applied by an undertaking in a dominant position;in order to determine whether exclusivity agreements, individualized quantitycommitments and individualized retroactive rebate schemes are compatible with Article102, it is necessary to ascertain whether, “following an assessment of all thecircumstances,” those practices are “intended” to restrict or foreclose competition on therelevant market or are “capable” of doing so [para. 215] or, as the Court phrased it inpara 287, whether the conduct in question “tended to restrict competition or … wascapable of having that effect.”12