The Decision of the Commission of 13 May 2009 in the Intel case: Where is the Foreclosure and Consumer Harm?

The European Commission has fined the US firm Intel Euro 1.06 billion for abuse of a dominant position (Art. 82 EC). In the author’s view, this decision raises a number of interesting questions regarding the treatment of evidence by the Commission, the application of the effects-based test proposed by the Commission in its Guidance Paper, and, in particular, of the ‘as efficient competitor’ test, to dominant firm’s rebates, the proof that rebates have harmed competition and consumers, and the treatment of efficiencies. The decision is now under review before the Court of First Instance.