Fantastic Opinion of Advocate General Wahl in Intel appeal case

I spent my morning reading this important Opinion and talking to journalists about its implications with interviews with Bloomberg, Politico and GCR. The Opinion is amazingly well-drafted and reasoned. It is a systematic destruction of the judgment of the General Court and by the same token of the Commission findings. The Opinion emphasizes the importance to look at all the circumstances of the case even when loyalty rebates are at stake suggests that this reading is compatible with Hoffman-La Roche and the existing case-law of the Court of Justice. The Opinion is also important because it observes that it is not sufficient to say the conduct in question is capable of having anti-competitive effects, it must be ascertained whether “in all likelihood” the conduct has an anticompetitive foreclosure effect. The AG considers that all the grounds of appeal raised by Intel both on substance and procedure should be upheld. Should the Court of Justice follows the AG, this would be one of its most important judgment of the past 25 years.

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