The Issue of the Economic Analysis and Effect-based Approach in the EU Competition Rule of Abuse of Market Dominance: The Recent Opinion of the Advocate General in Intel

There is no doubt that the EU competition regime has played a crucial role in contributing to the standards of international competition law, and the implementation of EU law has been regarded as a meaningful example of successful legal techniques. In particular, one of the important cases involving the international cases is the Intel judgments. For example, the Korean competition agency imposed sanctions on Intel, and the Seoul High Court upheld its decision. Similarly, the European Commission made a decision. The General Court (GC) also upheld most of the Commission’s decision, and the case is pending before the Court of Justice of the European Union (CJEU). One of the most essential issues in the Intel case was the question of whether an economic analysis was important in the scrutiny of the rebate practice. The soft law of the Commission provides the standard for the economic analysis, but the GC rejected the economic analysis in Intel. Since the 2014 judgment of the GC, there has been much discussion. In October 2016, Advocate General (AG) Wahl finally provided his opinion regarding the problem of the economic analysis, which seems very different from the GC’s judgment. Although the opinions of AGs are not legally binding, AG Wahl’s opinion has stimulated important discussion on the problem of the formalistic approaches in competition cases. Because the development of EU competition law has affected other competition regimes, including the Korean competition regime, the recent discussion on AG Wahl’s opinion is meaningful for the further development. In particular, according to AG Wahl, the role of economics in the implementation of competition laws and policies has been recognised. The final judgment of the CJEU, which will eventually be issued, will influence the global competition law society relating to the issue of economic analysis in monopoly cases.