Applying ICN UC Workbook on Exclusive Dealing Arrangements Alvaro Ramos NGA Spain 2018 ICN Unilateral Conduct Workshop, Stellenbosch, South Africa

Topics European Perspective: Intel case Difficulties and challenges in enforcing antitrust rules to exclusivity Practical and procedural considerations

1. European Perspective on exclusivity Guidance Paper GC ruling on Intel Previous caselaw on exclusivity ECJ appeal on Intel European Commission reaction to the Intel case

Rebuttable presumption Standard of foreclosure Access to evidence 2. Difficulties and challenges in enforcing antitrust rules to exclusivity Rebuttable presumption Standard of foreclosure Access to evidence

3. Practical and procedural considerations Don’t start cases with a long and painful RFI. Identify key data points Identify cases with greater risk of Type II errors Understand early on if a decision imposing a fine and remedies is the right tool Put cases out of its misery quickly but do not punish case handlers for not finding an infringement: Due process is not a “case retardant” but rather the opposite Work with other agencies