배제적 리베이트 사건에서 경제적 분석방법 적용 문제 - EU 법원 Intel 판결을 중심으로 -

In May 2009, the European Commission made a decision to impose the fine (€1.06 billion) on Intel for its violation of competition law. In June 2014, in the litigation brought by Intel, the General Court of European Union ruled in favor of the European Commission. The Intel case provides many implications with respect to Treaty on the Functioning of the European Union (TFEU) Article 102 (prohibition of abuse of a market dominant position). The case is important, since it reviews whether the “effects-based approach” is necessary. Right before the Intel case, the European Commission published Guidance on Article 102 Enforcement Priorities (hereinafter Guidance Paper), and the European Commission expressed that it would rely on an economic approach in terms of abusive exclusionary conduct in TFEU Article 102. In the Intel case, however, the General Court of European Union had a position that competition authorities do not have to prove the rebate’s effect on (potential) limitation of competition. The decision of the General Court of European Union is evaluated as proper, when considering the interests of business undertakings who could possibly be market dominant players and consumers. In addition, since the General Court of European Union does not limit and criticize an economic analysis that the European Commission has conducted, it is not expected that the competition authorities’ attempt to use economic analysis will be generally weakened. The discretionary power of the competition authorities is still strong, and it is not true that the Guidance Paper is meaningful only when the court accepts it. Nonetheless, when considering the impact of the EU decision on many other countries, it is expected that detailed considerations will be necessary and that the enforcement of competition authorities with respect to rebates will be more frequent in the future.