The Application of Article 102 TFEU by the European Commission and the European Courts

In the final year of Joaquin Almunia’s leadership, DG COMP brought 16 investigations with Article 102 elements to a formal close. They included four fining decisions, with fines ranging from €1 million to c. €70 million, but no fine was imposed in Motorola, on account of the lack of clear case-law from European and Member State courts in this area. The General court’s judgment in Intel was the most significant judgment from the European Courts over the last 12 months. In that case, the Court’s assessment of exclusivity rebates is unlikely to satisfy those hoping for a clear endorsement of the economics-led approach advocated in the Commission’s Article 102 Guidance Paper.