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  • Cristina Lefter

Abuse of Dominance - Intel and Mondelez


In recent years, there has been European-level discussion about the (alleged) abuse of dominant position by technology giants in particular (for example, the Intel case[1]), but also in other industries (such as the most recent decision in the Mondelez case[2]). The concept of abuse of dominant position adopted by the European Commission for limiting and sanctioning it has undergone a notable evolution (although Regulation 1/2003[3] is still in force without substantive changes)[4]. The major reservation regarding the sanctioning of abuse of dominant position is probably that no one wants to discourage large competitors, capable of investment, innovation, and progress, from doing exactly these things for rather sterile reasons, such as the fact that at some point their conduct fits the textbook description of abuse of dominant position. Perhaps that is why the European Commission (the Commission) and the Court of Justice of the European Union (CJEU) have understood that they need to allow for flexibility and adaptation of this concept to the realities and needs of the present, so that consumer interest is prioritized.


This adaptation to market realities is known as the „economics-based approach”. This method focuses on the economic effects of a dominant company's behaviour on the market and consumers, using detailed economic analysis and econometric tools to substantiate decisions. The goal is to ensure that interventions are justified and proportionate, thereby promoting competition and economic efficiency. However, the concrete application of the economic approach has taken different forms, as evidenced by the comparison of two important cases in recent years, i.e., Intel and Mondelez, reflecting the complexity and peculiarities of each case.


Intel Case


The Intel case refers to the charges brought by the Commission against Intel regarding the alleged abuse of dominant position in the processor market through conditional discounts and direct payments to computer manufacturers and retailers to exclude its main rival, AMD. In 2009, Intel was fined by the Commission €1.06 billion (the largest fine at the time) for anticompetitive practices aimed at eliminating competition and limiting consumer choices. In a first instance, the EU General Court upheld the Commission's decision, stating that the discounts offered by Intel were capable of restricting competition. This decision was appealed by Intel, and in 2017 the ECJ upheld the appeal and referred the case back to the General Court for re-evaluation, emphasizing the need for a detailed economic analysis of Intel's behaviour. In 2022, the General Court annulled the fine imposed by the European Commission, concluding that it had not sufficiently demonstrated the anticompetitive effects of Intel's discount schemes. In other words, in this case, the final judgment showed that economic analysis was necessary to establish the anticompetitive effects of Intel's practices.


Mondelez Case


In May 2024, the Commission imposed a fine of €337.5 million on Mondelez International, a major global food company, finding that it engaged in anticompetitive practices by restricting the cross-border sales of its products in the European Union. The Commission found that Mondelez violated EU competition rules by (i) entering into anticompetitive agreements or concerted practices intended to restrict cross-border trade in various chocolate, biscuit, and coffee products, and (ii) abusing its dominant position in certain national markets for the sale of chocolate tablets. Mondelez's anticompetitive behaviour would have included: (i) limiting the areas or customers to which certain wholesalers could resell Mondelez products, imposing higher prices for exports than for domestic sales; (ii) preventing distributors from selling in other Member States without prior approval; (iii) refusing to supply certain intermediaries or ceasing supply in certain countries to maintain higher prices. The Commission's conclusion was that these practices hindered free trade between Member States and led to the artificial segmentation of the market, allowing Mondelez to maintain higher prices for its products at the expense of EU consumers. In the Mondelez case, the infringement identified was serious and obvious, having as its object the restriction of competition in the EU and making economic analysis redundant.


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In both cases, the Commission used economic principles and methodologies to assess the effects of companies' behaviour on competition and consumer welfare. This approach involves analysing market dynamics, assessing market power, evaluating potential efficiencies, and considering the impact on consumers through the prism of product prices and variety of choice. However, the Intel doctrine (according to which - in certain cases - dominant players can demonstrate the lack of anti-competitive effects of their practices) did not apply in the Mondelez case, where the violations were serious and had as their obvious object the distortion of competition (Mondelez admitting otherwise the infringement, cooperating with the Commission and benefiting from a 15% reduction of the fine).[5] 


[1] Intel Corp v European Commission (Decision) [2017] C-413/14 P, EU:C:2017:632.

[2] European Commission Decision C(2022) 1234 final, Case AT.40012 – Mondelez

[3] Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty

[4] The idea that competition law has undergone significant changes in recent years, even though the provisions of Articles 101 and 102 of the TFEU (formerly Articles 81 and 82 of the Treaty of Rome (EEC)) have essentially remained the same, is extensively discussed in a very good recent work that I quote here, namely Pablo Ibáñez Colomo, The New EU Competition Law (Hart Publishing 2023).

[5] The idea of ​​the parallel between the two cases - Intel and Mondelez - can be found in the article Mondelez: abuses by object, consistency and the administrability of Article 102 TFEU, by Pablo Ibanez Colomo and published on May 30, 2024 on the website https:// chillingcompetition.com/.

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