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Speaker 1: Over the last twenty years, the European Commission has not

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Speaker 1: lost many anti trust cases in the European courts. Companies

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Speaker 1: usually settled with the Commission, often with very substantial fines,

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Speaker 1: because the Commission rarely loses. But eight years ago, the

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Speaker 1: Commission imposed a fine of over a billion euros or

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Speaker 1: about one and a quarter billion dollars on Intel for

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Speaker 1: paying rebates to computer manufacturers who agreed to buy at

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Speaker 1: least of their chips from Intel. The Commission said it

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Speaker 1: was anti competitive, and Intel has been challenging that finding

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Speaker 1: court for the last eight years. And today the European

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Speaker 1: Union's top court overruled a lower court decision which had

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Speaker 1: upheld the fine. So a rare loss for the European Commission.

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Speaker 1: Here to talk with us about the court's decision are

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Speaker 1: E tor RTIs and anti trust analyst for Bloomberg Intelligence

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Speaker 1: a professor Professor Eleanor Fox of n y U Law School.

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Speaker 1: Eleanor tell us what the European Court decided today? Okay,

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Speaker 1: thank you. So the European Court issued a pretty stunning

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Speaker 1: decision that decided that the court below it's called the

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Speaker 1: General Court, had not done its job in analyzing the

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Speaker 1: effects of Intel's practices on the market and sent the

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Speaker 1: case back for further consideration by this General court. Now,

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Speaker 1: tell I tell you a little more about the strategy

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Speaker 1: of Intel that was being challenged and what it is

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Speaker 1: it is going back for re examination. Sure, go ahead, Okay,

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Speaker 1: So I do want to add this to your statement

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Speaker 1: of the facts that Intel makes the chip that is

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Speaker 1: inside most computers, or so of the important chip inside

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Speaker 1: the computer is made by Intel. UM A m D

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Speaker 1: is its only significant competitor, and A m D at

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Speaker 1: last made a really great chip, and Intel thereupon set

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Speaker 1: upon a strato a G. This is at least as

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Speaker 1: found by the European Commission, to keep the new A

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Speaker 1: m D chip from getting any traction. And part of

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Speaker 1: that strategy was the rebates that you mentioned, and also

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Speaker 1: attempts by getting the big buyers to preach their contracts

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Speaker 1: with A m D and to shun the new A

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Speaker 1: m D chip for the period of time about six

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Speaker 1: months that it would usually take for the A m

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Speaker 1: D chip to get traction. UM but in Health says

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Speaker 1: that this action on its behalf was actually competitive pro competitive.

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Speaker 1: It was reacting UM to the A m D chip

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Speaker 1: by competition including it says lower prices because three bates

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Speaker 1: are lower prices. So the European Commission issued a really

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Speaker 1: long decision going into all aspects of the case, and

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Speaker 1: then that went up an appeal to the General Court.

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Speaker 1: But the General Court failed to even analyze a huge

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Speaker 1: part of the commission k um, which it's a little

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Speaker 1: bit technicality. What later I'll tell you, um, But this

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Speaker 1: is what the Court of Justice said. The case has

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Speaker 1: to be sent back to the General Court to look

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Speaker 1: at that huge part of the Commission case to see

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Speaker 1: if indeed the Commission had really made the case that

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Speaker 1: the Intel strategies were anti competitively anti competitive and for

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Speaker 1: closing of competition. I tored, what's likely to happen now

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Speaker 1: that it goes back to the General Court is the

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Speaker 1: die cast in favor of Intel. Now I guess, well, well,

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Speaker 1: first of all, thank you very much for having me

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Speaker 1: in the in the soul um. I think it's very

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Speaker 1: difficult to say at this point what will happen because

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Speaker 1: the Court is to a very actually a very short decision,

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Speaker 1: just twenty seven pages for such a long case. It's

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Speaker 1: such a complicated case, and he didn't address all the

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Speaker 1: issues that the parties um address the partisan meeting in

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Speaker 1: the first instance. However, we can see, for example that

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Speaker 1: the that the EU Court basically send the case back because,

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Speaker 1: as Professor Eleanor focess, the EU, the lower EU Court

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Speaker 1: failed to provide um complete reasoning of the of the

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Speaker 1: Intel's arguments. However, it didn't actually challenge the the Commission's

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Speaker 1: findings that were used to find Intel in first case.

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Speaker 1: So even if this seems like a victory for Intel,

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Speaker 1: and that could lead to a further victory down the

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Speaker 1: road for Intel, we may find a different result as

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Speaker 1: the EU, as the lower EU Court will have not

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Speaker 1: to take the analysis from the beginning again. We've been

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Speaker 1: talking with Professor Eleanor Fox of n y U Law

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Speaker 1: School and Bloomberg Intelligence anti trust analyst Eur Ortiz about

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Speaker 1: the today's decision by the European Union's top courts to

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Speaker 1: overturn a decision that had upheld a one billion dollar

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Speaker 1: fine imposed for anti competitive behavior by the European Commission

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Speaker 1: on Intel. It's a it's a very uh in some

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Speaker 1: ways stunning decisions, Professor Fox, and we are we are

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Speaker 1: going to explore with them today now the the implications

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Speaker 1: for not just Intel, but other companies I tour. This

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Speaker 1: is a it's a rare thing for the European Commission

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Speaker 1: to lose in court UM and as a result, a

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Speaker 1: lot of companies just settle with them, even when the

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Speaker 1: fines are very big and they have to they have

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Speaker 1: a lot of conditions that they have to agree to.

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Speaker 1: Will Intel's victory here prompt more companies to want to

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Speaker 1: challenge European Commission decisions, Well, I think it will definitely

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Speaker 1: UM encourage companies UM to use the court route as

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Speaker 1: UM as an alternative. Eve the part this can settle

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Speaker 1: or agree in a given UM antitrust proof. But however,

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Speaker 1: this is at least in my opinion, this is not

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Speaker 1: a clear defeat for the European Commission in its analysis

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Speaker 1: UM as long as it has it hasn't been proved

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Speaker 1: yet that the analysis conducted by by the European Commission

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Speaker 1: was wrong. He simply has to be again reassess by

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Speaker 1: the court and maybe lay their own UH. The Court

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Speaker 1: will determine whether the analysis was correct or incorrect. But

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Speaker 1: having said that, it's true that for ongoing investigations this

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Speaker 1: might be UM good news for some of the companies

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Speaker 1: currently and investigation eleanor two companies that have been watching

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Speaker 1: this case very closely are Qualcom and Google. Qualcom has

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Speaker 1: a case with the EU and Google uh is being investigated.

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Speaker 1: Do you see this decision as being a big help

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Speaker 1: to those two companies? That it is? As I towards said,

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Speaker 1: you know, this decision does not impugne what the European

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Speaker 1: Commission held. It simply says that the Intermediate Court didn't

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Speaker 1: take on board and didn't analyze what the European Commission

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Speaker 1: held UM. So it's not clear that it's a great

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Speaker 1: help to them, but it has some sentences in it

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Speaker 1: that they will find very helpful. And the main thrust

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Speaker 1: of the case, which says that Intel has made these obligations,

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Speaker 1: that what they did wasn't even capable of restricting competition,

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Speaker 1: and that that was not given affair hearing by the

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Speaker 1: UH of Court the General Court, I think will be

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Speaker 1: taken as a very good signal for Cuudcome and Google.

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Speaker 1: I tourt. The decision is going to go back to

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Speaker 1: the UM, to the lower court now for additional analysis.

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Speaker 1: So tell us how this now plays out. How long

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Speaker 1: are we going to be in this litigation before we

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Speaker 1: really know what happens? Well, I hope not eight years more.

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Speaker 1: I think the party is especially the company, will not

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Speaker 1: be happy with that outcome. UM. But the thing is

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Speaker 1: that the case really starts again. And even though UM,

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Speaker 1: the whole analysis might have to be taken again, the

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Speaker 1: court already UM knows the case, know what the Commission

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Speaker 1: was doing. So we might expect shorter uh periods of

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Speaker 1: time for both judicial decisions because the lower EU court

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Speaker 1: now we'll have to reissue a new or to issue

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Speaker 1: a new ruling, and this ruling could be farther appealed

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Speaker 1: by any of the parties in the top EU court.

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Speaker 1: So we are talking at least about four or five

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Speaker 1: years more. Oh No, I want to just step back

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Speaker 1: for a second and ask you what this opinion does

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Speaker 1: for EU competition law relative to the US intels settled

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Speaker 1: what I think are essentially very similar claims with the

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Speaker 1: Federal Trade Commission here in the US. Back in, Um,

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Speaker 1: is the euu EU now more relaxed in terms of

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Speaker 1: its views about these sorts of rebates? Um, It's hard

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Speaker 1: to say that it's more relaxed because there's this great ambiguity.

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Speaker 1: It says that more has to be done in terms

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Speaker 1: of analyzing what is an anti competitive foreclosure, and you

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Speaker 1: can say that did we lose your owner eleanor I

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Speaker 1: think we we we lost you um I I told

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Speaker 1: maybe you could pick up on that thread. Where where

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Speaker 1: does UM is that? Does this mean that the EU

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Speaker 1: is is basically um UH now now the easier place

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Speaker 1: for companies to win these nitrust cases than the US. Well,

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Speaker 1: I think first of all, there are many more cases

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Speaker 1: in the EU that in the US, because the EU

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Speaker 1: regulation coverts some anti competitive Canada that the EU the

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Speaker 1: US UM considers completely competitive. So definitely there will be

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Speaker 1: more cases here. And for the last year's Commissioner Stagger,

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Speaker 1: the Chief UM, the Chief UM of the of the

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Speaker 1: European Commission in charge of anti trust has been very

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Speaker 1: eager to open these kind of cases. So I think

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Speaker 1: more cases will come here, But definitely it doesn't mean

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Speaker 1: that will be easier for the company is to win,

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Speaker 1: because also the European Commission is learning after these uh

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Speaker 1: core decisions and is bringing more evidence and is reinforcing

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Speaker 1: the arguments in the in the upcoming investigations. So more

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Speaker 1: cases may come, but doesn't mean necessarily more victories for

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Speaker 1: the companies. That's authorities of Bloomberg intelligence and Professor Eleanor

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Speaker 1: Fox of n y U Law School. Thanks very much

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Speaker 1: for being here on Bloomberg Law