The opinion of AG wahl in Intel: Bringing coherence and wisdom into the CJEU’s pricing abuses case-law

On 20 October 2016, Advocate General (AG) Wahl delivered its Opinion in Intel’s appeal to the Court of Justice of the EU against the judgment of the General Court of the EU. In this Opinion, in which AG Wahl advises the Court of Justice to set aside the judgement of the General Court, AG Wahl addresses questions of fundamental importance with respect to pricing conduct by dominant firms. The most remarkable feature of AG Wahl’s Opinion is that it brings coherence in an otherwise seemingly incoherent case-law in explaining that all forms of pricing conduct should be assessed under a similar test, whereby the assessment of whether the conduct is capable of producing foreclosure effects should require an analysis of “all the circumstances” of the case. Besides bringing coherence in the abusive pricing case-law, the Opinion brings the analysis of exclusive or more generally loyalty rebates in line with the teachings of economics whereby it is not the form of the rebates but their effects on competition that matters