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

More documents

Recommendations

Info

conditions associated with the discounts/rebates) and none of the efficiency defences provide arelevant justification for the conduct in question.In its decision, in fact, the Commission does not object to rebates in themselves but to theconditions Intel attached to those rebates. Because computer manufacturers are dependent on Intelfor a majority of their x86 CPU supplies, only a limited part of a computer manufacturer's x86 CPUrequirements is open to competition at any given time.The decision contains a broad range of contemporaneous evidence that shows that AMD, essentiallyIntel's only competitor in the market, was generally perceived, by computer manufacturers and byIntel itself, to have improved its product range, to be a viable competitor, and to be a growingcompetitive threat. The decision finds that Intel's practices did not constitute competition on themerits of the respective Intel and AMD products, but rather were part of a strategy designed toexploit Intel's existing entrenched position in the market.6. Conditional rebates after Guidance paper: is form enough?Although the case law showed in the paragraph 6 are considered an important step in theimplementation of the new economic approach of Article 82, they seem to confirm the traditionalapproach of the Community institutions, according to which the prohibition of loyalty discounts isjustified by their mere tendency or abstract capability to exclude competitors.In this paragraph the analysis in focused on the use of “as efficient competitor” test in the Inteldecision.The Commission explains that this test relies on three parameters: (i) the contestable share of agiven customer’s demand; (ii) the relevant time horizon on which the customer in question bases itsdecision on whether to change suppliers; and (iii) the relevant measure of viable cost for an asefficient competitor (in this case average avoidable costs or “AAC”).Both Commission and Intel conducted an “as efficient competitor” test reaching the oppositeconclusion. In fact despite both the Commission and Intel conceptually apply the “as efficientcompetitor” in the same manner, they strongly disagree over the ways in which the variablesessential to the application of this test should be determined, in fist instance the determination of theso-called “contestable share”. Regarding this point is important to underlay that a relatively broad“contestable share” will be favorable to the investigated firm as the test will probably be easy topass, a narrow “contestable share” will make the test very hard to pass. According to the ratio of“as efficient competitor test” the determination of the contestable share should be based on16
documents or data that the dominant firm had access to at the time it set its rebates, as a firm canonly determine the legality of its price/rebates on the basis of information that is available to it.According to the Intel decision instead, the Commission relies on internal document of OED tocalculate the share of contestable demand 13 .This means that a fundamental variable of the test was calculated on the basis of documents thatIntel had no access.It important to note the failure to meet the “as efficient competitor” test does not necessarily meanthat the firm has foreclosed its competitors, as clearly explained in the Guidance Paper in wich theCommission stated that if : “the data suggest that the price charged by the dominant undertakinghas the potential to foreclose as efficient competitors, then the Commission will integrate this in thegeneral assessment of anticompetitive foreclosure (see Section B above), taking into account otherrelevant quantitative and/or qualitative evidence.” 14 . In the Section B the Commission clarified that“If the conduct has been in place for a sufficient period of time, the market performance of thedominant firm and its competitors may provide direct evidence about anticompetitive foreclosure;for reasons attributable to the allegedly abusive conduct, the market share of the dominant firmmay have risen or a decline in market share may have been slowed; for similar reasons, actualcompetitors may have been marginalised or may have exited, or potential competitors may havetried to enter and failed.”Section B of the Guidance Paper seem to require a effect based analysis that the Commission didn’tconsidered in the Intel case.7. The need of a “safe harbour” ruleAs such, it is important to find a “safe harbour” rule based on solid economic grounds that wouldallow the authorities and dominant undertakings to find out which rebates are likely to be notabusive from an antitrust perspective. At the same time, the rule should respect the pricing freedomof all companies and not to cause many false positives which would prohibit pro-competitivediscounts by the dominant companies only because they would appear to be against the form-basedrule.This kind of rule for rebates would consist of some cost-based test. It would assess whether therebated price offered by the dominant undertaking is likely to lead to the exclusion of competitorsby comparing the rebated prices with some relevant cost measure in a similar way to predation tests.13 See for example para 1202-12 Commission Intel Decision regarding the calculation share of Dell’s demand that was“contestable14 Guidance Paper, supra note , at para 2717
Page 1 and 2: LUISS GUIDO CARLIDOTTORATO DI RICER
Page 5 and 6: a form-based approach 4 . In partic
Page 7: Guidance Paper is the result of a r
Page 10 and 11: In the following section are analyz
Page 12: The rebate schemes were individuali
Page 15: The analysis takes into considerati
Page 19 and 20: which apply only to some type of cu
Page 21 and 22: to capture. Then it compares these
Page 23 and 24: References:DG Competition, DG Compe
Page 25 and 26: Secondo quanto stabilito dalla giur
Page 27 and 28: L’autonomia di fattispecie abusiv
Page 29 and 30: Difatti DT era soggetta a specifici
Page 31 and 32: L’applicazione dei criteri sopra
Page 33 and 34: 1.3 La sentenza TeliaSonera: un sal
Page 35 and 36: A parere dunque dell’avvocato gen
Page 37 and 38: Le pronunce comunitarie hanno accre
Page 39 and 40: profitmargins 30 ”. Medesime conc
Page 41 and 42: BIBLIOGRAFIACase C-52/09, Konkurren
Page 44 and 45: REGULATORY IMPACT ASSESSMENT INTELE
Page 46 and 47: IntroductionRegulatory Impact Asses
Page 48 and 49: technical nature of RIA tool was pr
Page 50 and 51: correct evaluation of the costs and
Page 52 and 53: counter political development that
Page 54 and 55: each "major rule" pending, subject
Page 56 and 57: compelling public need; the first s
Page 58 and 59: the effort of the other department
Page 60 and 61: 3. The Development of RIA: the Euro
Page 62 and 63: Commission initiatives included in
Page 64 and 65: But there is another aspect of the
Page 66 and 67:
SECTION BAn Empirical Analysis of T
Page 68 and 69:
With the adoption of New Regulatory
Page 70 and 71:
The Commission evaluates the impact
Page 72 and 73:
The document of Commission gives ve
Page 74 and 75:
following are summarized the main p
Page 76 and 77:
The electronic communications secto
Page 78 and 79:
In order to reach this objective th
Page 80 and 81:
2) this would have a positive impac
Page 82 and 83:
Economicoperators' costsand benefit
Page 84 and 85:
costs and benefits related to the e
Page 86 and 87:
3. Third Case Study - The Commissio
Page 88 and 89:
According to the ERG Common Positio
Page 90 and 91:
architecture implemented by an SMP
Page 92 and 93:
same time Ofcom believes that this
Page 94 and 95:
In order to understand how the RIA
Page 96 and 97:
What is possible learned from the a
Page 98 and 99:
- European Commission, Draft Recomm
show all

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

Create successful ePaper yourself

Delete template?

Save as template?