N. Petit on AG Wahl’s Intel Opinion
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Nicolas has been pretty prolific lately combining interesting writings with his new focus on artificial intelligence (not kidding). He has just posted on SSRN a new paper titled “The Advocate General’s Opinion in Intel v Commission: Eight Points of Common Sense for Consideration by the CJEU“.
His contention in this interesting paper (which as you might have expected suggests the ECJ to follow AG Wahl’s Opinion) is that improvements of the law on Article 102 TFEU are within reach, without a necessity to completely revamp the case-law. Suffice is it to apply logic, first principles and common-sense, and follow the trajectory delineated by Post Danmark I and II.
Nicolas has identified the following as the key 8 ideas developed in the paper:
1.An Effects Analysis underpins Hoffman-La Roche;
2.Category and “Super-Category” Mistakes;
3.The Non Sequitur of Exclusivity =Exclusion;
4.The Non Sequitur that Any Exclusionary Effect is Anticompetitive;
5.Capability, Likelihood and Probability Standards;
6.The AEC test is a legality test, not a priority test;
7.A More Economic Approach to the Enforcement of Article 102 TFEU improves Legal Certainty, the Rule of Law and the Uniform Application of EU law;
8.A More Economic Approach does not entail more Mathematics;
To better understand what these mean, we suggest you take a look at his paper, which can be downloaded at:
Chillin'Competition 
Alfonso could not recognize that he succumbed to an essential facility argument :).
jaimz57
30 November 2016 at 4:54 pm
Hopefully the Court will make use of this unique opportunity they have. But can the Court hide behind the fact that the proceedings were initiated before the Guidance/Priorities paper was published (para. 916 in the decision from 2009)?
Even though the Commission applied both lines of thinking, and thereby showing its lack of confidence towards the reasoning laid down in case-law, the GC said that the Commission had no obligation to
review surrounding circumstances, like in Michelin I and British Airways (paras 78,82 GC judgment).
How much can this simple fact get in the way of the CJEU reaching a much needed coherent judgement regarding this issue?
I refer to Post Danmark I and Tomra for comparison, where the Court used the old definition of abuse originating from Hoffman-La Roche, instead of the amended one from Grand Chamber in Post Danmark I. The difference between Post Danmark I and Tomra, among other things of course, was that Tomra was initiated before the publication of the Guidance/Priorities paper.
G.G.
8 December 2016 at 11:38 am