The highest court in the EU has dealt a blow to the European antitrust regulator.  In a report on the morning of September 7 the European Court of Justice, a roughly $1.3 billion fine imposed in 2009 on Intel needed to be re-examined by a lower court.

The facts in this case involved the question of if use of rebates by a dominant company were de facto anti-competitive and an abuse of market position.  For the European Commission, they had taken the position that they were and had imposed the fine.  Intel had given the rebates to computer manufacturers, more than likely to keep them from using AMD chips.

In the past, European courts have effectively rubber-stamped European Commission antitrust decisions and fines.  Most companies would typically just pay the fines, then move on.  But, the fine was appealed by Intel, and then took its appeal to the European Court of Justice once a lower court agreed with the European Commission.

The European Court of Justice was critical of the lack of consideration of the lower court of Intel’s arguments about competition, as well as the lack of scrutiny of the underlying facts.  This is significant, as it may signal a new willingness of the European Court of Justice to question the European Commission’s decisions and require an independent analysis of the impact on markets of alleged anti-competitive behavior.

It’s possible that the ruling could be limited to the facts of the Intel case, and might have less impact on factually unrelated antitrust cases.  However, it could give hope to American technology companies who are facing antitrust investigations and potential penalties to challenge European Commission decisions in European courts.

Recently, Google had declined to appeal a $2.7 billion fine by the European Commission over vertical search content, anticipating that the attempt to appeal would be futile.  There are currently two other active  exclusivity provisions in Google AdWords agreements and the other on app-install requirements in Android-OEM contracts.  Google could possibly face future “vertical search” actions that is similar to the shopping search case for which it was fined.

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