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Qualcomm: Numerous Procedural and Substantive Shortcomings Lead to Spectacular Commission Defeat

Anton Gerber


Keywords: antitrust, duty to take notes, third-party disclosure, as-efficient-competitor, AEC test

Annotation on the Judgment of the General Court (Sixth Chamber, Extended Composition) of 15 June 2022 in Case T-235/18 Qualcomm v Commission
In 2018, the European Commission adopted a decision finding that Qualcomm had abused its dominant position on the relevant worldwide open market for LTE chipsets by offering exclusivity payments to its customer Apple. The EU General Court upheld Qualcomm’s challenge of that decision. The ruling came shortly after another high-profile Commission defeat concerning Article 102 TFEU’s application on presumed foreclosure effects, caused by a loyalty rebate scheme employed by another chipmaker (Intel). The Qualcomm judgment points out a number of procedural and substantive flaws, and its repercussions seem to have already changed the way the Commission conducts antitrust proceedings. It may have fuelled the Commission’s recently launched process to update its approach for the assessment of exclusionary conduct by dominant undertakings.

Anton Gerber, LL.M (Bruges), Rechtsanwalt and Associate at Sheppard, Mullin, Richter & Hampton LLP, Brussels.


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