1. ICN Unilateral Conduct Workshop 2 November 2018, Stellenbosch Exclusivity rebates in a post-Intel world Massimiliano Kadar DG Competition, European Commission
Please edit the Master Layout to include information specific to the presentation. For slides for the DG/DeputyDG, delete “[Directorate], [Unit]”.
(1) Slides
(i) View… Master… Slide Master, (ii) On the first slide, add the Conference, Venue and Date in the box in the top left corner, (iii) On both the first and second slides, in the bottom left text box, add the Directorate and Unit information, (iv) Close Master View
(2) Handout pages
(i) View… Master… Handout Master, (ii) In the bottom left text box, add the Directorate and Unit information, (iii) Close Master View
(3) Notes pages
(i) View… Master… Notes Master, (ii) In the bottom left text box, add the Directorate and Unit information, (iii) Close Master View

2. The ECJ judgment in Intel
Considers conditional rebates as pricing practices, which are illegal when they are capable of foreclosing as- efficient competitors
Confirms that a presumption of illegality applies to exclusivity rebates by a dominant company
However, clarifies that in case of substantiated submission by the dominant company, an analysis of potential effects has to be carried out
Lists factors to be considered (price-cost AEC test not included)

3. Qualcomm (Exclusivity)
Rebates conditional on exclusivity paid to Apple
The Decision finds that Qualcomm's payment are exclusivity payments presumed to be illegal
However, further to Qualcomm's claims that its conduct was not capable of restricting competition, the Decision:
Analyses potential anti-competitive effects in light of:
Extent of dominant position and amount of payments
Internal documents showing that Apple gave serious consideration to switch in part to Intel
Apple's role in the market; and
Rebuts Qualcomm's arguments (both on price-cost AEC test and alleged efficiencies)

4. Google Android: revenue sharing
Google entered into Revenue Share Agreements (RSAs) with major manufacturers and mobile network operators, giving them a share of its search revenues, on condition that they exclusively pre-installed Google Search on all their Android devices
Decision finds that RSAs were exclusivity payments, presumed to be illegal
Decision finds potential harm to competition based on:
Contemporaneous evidence
Quantitative analysis (AEC test)
Lack of constraints by user downloading competing apps

5. Conclusions
The Intel judgment provides a framework for the appraisal of exclusivity rebates
The way the framework is applied and the actual sources of evidence necessarily depend on the specifics of individual cases
Qualcomm and Google Android demonstrate that:
There is no hierarchy between different types of evidence
The Commission can prove anti-competitive effects in a number of ways
An AEC test is a tool, among many, that can be used to demonstrate effects