Conditional Rebate Schemes and the More Economic Approach: Back to the Future?

In 2009, The EU Commission’s priority notice (guidance paper) appeared to introduce a new era in the treatment of price-related exclusionary conduct. Being an implementation of the more economic approach the “as efficient competitor” test (hereinafter “AEC test”) entered the stage as the relevant yardstick for assessing conditional rebates. Recently, the European courts have ruled on conditional rebates in Tomra and Intel. Beyond assessing the specific facts at hand, the General Court and the Court of Justice took a stand on the application of the more economic approach to abusive rebates by dominant firms. This article will analyse these rulings and their potential impact on the treatment of rebates under EU competition law