Competition law and loyalty rebates (English version)

An English abstract of our paper published with Julien Pillot in the Revue Internationale de Droit Economique

Fidelity rebates and abusive exclusionary conducts; which evolution in the decision-making practise of the European Commission?

On February 2009, the European Commission disclosed new guidelines relative to its enforcement approach in cases abusive exclusionary conducts by dominant firms. Fidelity rebates are amongst those anticompetitive strategies. As for exclusive dealing practices, this very specific form of abuse is a much debated question both through the Commission’s decisions and the European Court of Justice Judgments. Hence, the European antitrust authorities’ juridical approach regarding loyalty rebates is often criticized as being formal rather than based on the concrete economic effects. In this regard, the question arises as to whether the Intel decision, issued a couple of months later by the Commission, evidences a shift towards an effect based approach. In addition to the analysis of the fidelity rebate based strategies, this article discusses both the requirements and the consequences of the implementation of an effect-based approach, specifically with regard to abuse of dominance cases under article 102.