Learning From Losses: Why Article 102 Needs Its Airtours Moment
Executive Summary
The European Commission responded very differently to two sets of courtroom defeats. After the General Court annulled the merger prohibitions in Airtours, Schneider, and Tetra Laval in 2002, the Commission launched sweeping institutional, procedural, and substantive reforms. Its response to the later annulments of infringement decisions under Article 102 of the Treaty on the Functioning of the European Union (TFEU), which prohibits abuse of a dominant position, has been far narrower.
The 2002 merger judgments exposed weak internal checks, procedural defects, insufficient evidence, and economic analysis too dependent on market structure. The Commission responded by reorganizing merger review, strengthening the Hearing Officer, creating independent economic and peer review, expanding parties’ access to evidence, and adopting a broader effects-based legal framework. These reforms improved the Commission’s ability to test its theories before acting and produce decisions capable of surviving judicial review.
Intel, Qualcomm, and Bulgarian Energy Holding revealed similar weaknesses in Article 102 enforcement. The courts found failures to document and disclose relevant third-party evidence, consider exculpatory material, and connect theories of harm to realistic exclusionary effects. The judgments confirm that the Commission retains discretion to pursue legitimate theories of abuse. It must, however, support those theories with coherent evidence, respect the rights of defense, and show that the challenged conduct could exclude competitors under actual market conditions.
These decisions warrant a targeted review of the safeguards governing Article 102 investigations. The revision of Regulation 1/2003 should strengthen interview records, case-file completeness, access to evidence, independent economic review, and internal challenges to case teams’ conclusions. The Commission’s draft Article 102 guidelines should also reflect the courts’ effects-based jurisprudence rather than rely on presumptions that substitute conduct categories for competitive analysis. Strong internal checks will conserve enforcement resources, improve legal certainty, and reinforce the legitimacy of Commission decisions as competition policy faces greater political and industrial-policy pressures.
Introduction
The European Commission has responded very differently to two sets of courtroom defeats. In 2002, the Court of First Instance—now the General Court—annulled three merger prohibitions in quick succession: Airtours, Schneider, and Tetra Laval.[1] The reversals became the Commission’s “Airtours moment.” It quickly launched major institutional, procedural, and substantive reforms. That reform project continues in its April 2026 draft merger guidelines.
More recently, European Union courts overturned Commission infringement decisions under Article 102 of the Treaty on the Functioning of the European Union (TFEU), which prohibits abuse of a dominant market position. The principal cases were Intel, Qualcomm, and Bulgarian Energy Holding.[2] These decisions echoed the 2002 merger cases. Across both groups, the courts stressed the rights of defense and to be heard, including access to a complete evidentiary file and exculpatory material; analysis of competitive effects grounded in actual market conditions; and evidence strong enough to support the Commission’s theory of harm.
Yet the Commission’s responses diverged. It answered the 2002 judgments with broad merger reforms. Its response to the Article 102 judgments has been narrower and, in one important respect, counterintuitive. The Commission’s 2024 draft Article 102 guidelines rely more heavily on conduct categories and presumptions, even as the case law demands evidence that conduct can exclude competitors.
Merger review and unilateral-conduct enforcement differ in important ways. Merger analysis asks what a proposed transaction is likely to do, usually under tight statutory deadlines. Article 102 cases examine past conduct and often unfold over years. Yet the same institutional principle links both fields: Sound internal checks and strong due-process protections improve accuracy and produce decisions more likely to survive judicial review. That premise matters as European competition enforcement faces heightened public and political scrutiny.
Section 1 of this issue brief examines the merger annulments in Airtours, Schneider, and Tetra Laval. Section 2 considers the institutional, procedural, and substantive reforms that followed. Section 3 turns to the Article 102 annulments in Intel, Qualcomm, and Bulgarian Energy Holding. Section 4 draws together the broader implications, and Section 5 concludes.
I. The Airtours Moment: Three Merger Annulments
European merger control reached what contemporary observers called its “high watermark” between 1999 and 2001. The European Commission prohibited an unprecedented five transactions in 2001 alone, drawing the attention of business leaders and investors worldwide to its merger-review process.[3]
That record of aggressive enforcement met a sharp judicial response in 2002. Within five months, the General Court annulled the Commission’s merger prohibitions in Airtours, Schneider, and Tetra Laval. No European Union court had previously annulled a Commission merger prohibition. The three judgments therefore challenged both the outcomes of these cases and the methods that produced them.
The judgments exposed three related weaknesses. The Commission’s institutional structure lacked effective internal checks and procedural safeguards. Its evidence did not meet the required legal standard. And its analysis relied too heavily on formal indicators such as market shares and concentration, without adequately establishing the likely competitive effects. By scrutinizing the Commission’s evidence and economic reasoning more closely, the court established principles that reshaped European merger control and drove reforms that continue to influence it today.
A. Weak Internal Checks and Procedural Safeguards
One contemporary account described the Airtours, Schneider, and Tetra Laval judgments as exposing a “poorly organized merger review process” in which the Commission failed to compile evidence carefully or ground its decisions in sufficient facts.[4]
The criticism centered on the Commission’s institutional structure for merger review. Within the Directorate-General for Competition (DG Competition), the Merger Task Force assessed the evidence, developed a theory of harm—an explanation of how a merger could harm competition—decided whether the evidence established that theory, and recommended either approval, approval subject to conditions, or prohibition.[5] Effective internal safeguards did not adequately counterbalance this concentration of responsibilities. In Airtours, Schneider, and Tetra Laval, the General Court ultimately found that the evidence did not support the Commission’s decisions.
In Schneider, the General Court found that the Commission’s Statement of Objections—the formal document setting out its competition concerns—“did not permit Schneider to assess the full extent of the competition problems” alleged by the Commission.[6] That omission denied Schneider an opportunity to propose, “properly and in good time,” remedies broad enough to address those concerns.[7] Because remedies offered the only practical means of avoiding prohibition, the court considered this defect especially serious. It held that the Commission had violated Schneider’s rights of defense in several respects, invalidating the decision.[8]
The reasoning in Airtours was similar. The Commission’s manifest errors deprived Airtours of a meaningful opportunity to propose effective remedies. The Commission neither articulated its theory of harm clearly nor disclosed it early enough, then rejected Airtours’ final commitments because they came too late in the process.
In Tetra Laval, the General Court restated the principles governing access to the Commission’s case file.[9] Access allows parties to exercise their rights of defense effectively, particularly when they face an adverse decision, fine, or penalty. Although denying adequate access can justify annulment, the court found no such violation in Tetra Laval.[10]
More broadly, the three cases exposed the costs of weak internal checks. Without an effective mechanism for identifying evidentiary and analytical flaws early, judicial review became even more important. The reforms discussed below targeted these weaknesses.
B. The Commission’s Evidentiary Burden
The second strand of the merger judgments concerned the evidence needed to justify prohibition. In Airtours, the General Court held that the Commission must produce “convincing evidence” of its theory of harm[11] and “prove conclusively” that the merger would create an anticompetitive market structure.[12] The alleged harm was collective dominance—a situation in which several firms can coordinate their conduct without an express agreement.
The Commission fell short. The court found that, “far from basing its prospective analysis on cogent evidence,” the Commission had made fundamental errors in assessing whether the merger would create collective dominance. [13] It therefore had not proved to the required legal standard that the merger would impede effective competition.
The General Court identified similar defects in Schneider. It called some of the Commission’s findings “abstract,”[14] found that the supporting evidence was sometimes insufficient,[15] and criticized other findings as lacking evidence or precision.[16] Taken together, these errors deprived the Commission’s economic assessment of probative value—the capacity to prove the proposition for which it was offered.[17]
In Tetra Laval, the Commission likewise failed to meet its burden. It had not shown convincingly that Tetra Laval could leverage its dominant position—use market power in one market to gain dominance in another—or that eliminating Sidel as a potential competitor would strengthen the merged company’s position.[18] The court found “no cogent evidence” supporting the latter claim.[19]
Because merger review requires predictions about future market conditions, the court required “sufficiently convincing” evidence and a “particularly plausible” forecast.[20] It found neither.[21]
C. From Market Structure to Competitive Effects
The General Court did not reject the theories of harm themselves: collective dominance in Airtours and conglomerate leveraging in Tetra Laval. Instead, it demanded rigorous economic analysis showing that the predicted anticompetitive effects were likely. In Schneider, the court found that the Commission had not met its burden of proof. Its analysis lacked a coherent economic foundation because it did not properly evaluate countervailing evidence and relied on inconsistent or unclear market definitions.[22] The judgment shifted the inquiry away from formal indicators such as market structure, market shares, and concentration measures and toward likely competitive effects.
In Airtours, the Commission relied heavily on a reduction from four major competitors to three. It argued that the remaining firms would have strong incentives to coordinate tacitly—that is, align their conduct without an express agreement. The General Court held that this structural change alone could not establish collective dominance. The required prospective analysis “calls for close examination in particular of the circumstances which are relevant for assessing the effects of the concentration on competition,” supported by convincing evidence.[23]
The court then identified conditions relevant to whether tacit coordination could endure. Consumers might defeat it by switching to smaller competitors. Coordination might also unravel if the three large firms lacked an effective way to punish a member that departed from their shared course of conduct.[24] By requiring evidence on these mechanisms, the court aligned the legal concept of collective dominance with the economic concept of tacit coordination and supplied a framework for future cases.[25]
In Tetra Laval, the General Court recognized that the Merger Regulation can reach conglomerate mergers—transactions involving firms in neighboring or complementary markets.[26] But the Commission had to establish the alleged conglomerate effects through cogent evidence, not speculation about future conduct.[27] It needed “sufficiently convincing evidence” of both the likelihood and the consequences of leveraging and could consider only conduct that probably would be lawful.[28] Although the Commission retained some discretion, its prediction of the merged company’s conduct had to be “particularly plausible.”[29]
Nicholas Levy summarized the resulting standard: The Commission must show more than the mere possibility of leveraging. It must establish that the merger would, in all likelihood and in the relatively near future, create or strengthen a dominant position based on close examination of the relevant circumstances.[30] Together, these cases largely cemented an effects-based approach to European merger control.
II. From Judicial Defeat to Merger Reform
The three annulments arrived at a pivotal point in the Commission’s modernization of European merger control. The Commission had submitted a report to the Council in 2000, published a Green Paper reviewing the existing Merger Regulation in December 2001, and opened a public consultation.[31] Airtours, Schneider, and Tetra Laval transformed that planned modernization into a broader and more urgent overhaul. As Nicholas Levy observed, “the judicial defeats of 2002 provided the catalyst for a series of reforms” intended to make merger review “more structured, firmly grounded in sound economics, and consistently based on an objective assessment of quantitative evidence.”[32]
European Competition Commissioner Mario Monti acknowledged in November 2002 that the judgments, “no matter how painful, came at a right moment.” He urged the Commission to turn those setbacks into “an opportunity for even deeper reform than originally envisaged” and announced what he called “the most far-reaching reform” of European merger control since the first Merger Regulation took effect in 1989.[33]
The Commission approved the core reform package in December 2002 and implemented its principal elements through 2004. The package combined institutional, procedural, and substantive changes: stronger internal checks and independent economic review; earlier access to evidence and greater engagement with merging parties; and a revised Merger Regulation, new horizontal-merger guidelines, and a more effects-based analytical framework. Together, these reforms addressed the central weaknesses identified in the three judgments and reshaped how the Commission investigated, analyzed, and decided merger cases.
A. Building Internal Checks and Economic Expertise
European European Competition Commissioner Mario Monti responded to the merger annulments by strengthening the Directorate-General for Competition’s internal checks and balances.[34] He treated the quality of the decision-making process as central to the reform:
We will adopt changes, as radical as needed, to ensure that our merger investigations are conducted in a manner which is more thorough and more firmly grounded in economic reasoning and to further strengthen the due process guarantees built into our merger proceedings.[35]
Monti first reorganized merger review. He disbanded the centralized Merger Task Force and placed merger units within the agency’s sector-specific directorates. He also created the position of chief economist, who reported directly to the director-general and led a team charged with providing independent economic analysis and advising decision-makers at every level of an investigation.
Monti further established peer review panels composed of experienced Directorate-General officials who had not worked on the case. The panels reviewed case teams’ preliminary conclusions and challenged their assumptions. Monti explained that this independent scrutiny would counter investigators’ natural tendency to become convinced by their own arguments. A dedicated support unit helped make the panels an effective check on the soundness of preliminary findings.[36]
The reforms also expanded the Hearing Officer’s mandate, emphasizing the independence and integrity needed to preserve objective, transparent, and efficient proceedings.[37] The Hearing Officer reported to the competition commissioner rather than the Directorate-General, strengthening the office’s ability to protect merging parties’ rights of defense and oversee the fair conduct of proceedings.[38]
Pablo Ibáñez Colomo later connected these reforms to the broader value of judicial review:
One can think of a number of reasons why more robust checks on administrative action might lead to better outcomes, both from a legal and a non-legal standpoint. This conclusion is, if anything, confirmed by the very history of EU merger control, which shows that efforts to improve enforcement may be prompted by judicial review.[39]
The reforms following Airtours, Schneider, and Tetra Laval illustrate that principle. More extensive judicial review prompted the Commission to build stronger internal safeguards, deepen its economic expertise, and improve the quality of merger decisions.
B. Earlier Access and Procedural Engagement
The Commission answered criticism of its fact-finding on two fronts. Internally, the new checks and balances allowed officials outside the case team to test its preliminary findings before the Commission reached a formal decision. Greater management oversight also helped ensure that investigations received adequate resources. Monti instructed managers to “see to it that due attention is paid to the quality of evidence, and to ensuring that decisions reference such evidence clearly and comprehensively.”[40]
The Commission also gave notifying parties—the companies seeking merger approval—earlier access to the evidentiary record and the case team. Once the Commission opened an in-depth, or Phase II, investigation through an Article 6(1)(c) decision, the parties could review the file and receive ad hoc access to important third-party submissions that contradicted their position. This earlier disclosure allowed them to challenge those submissions before the Commission issued its statement of objections, rather than waiting until the Commission had formally set out its concerns.
The reforms created additional opportunities for direct engagement. Before issuing a statement of objections, the Commission could hold “triangular” meetings among the case team, the notifying parties, and third-party complainants. It also introduced state-of-play meetings at decisive stages of an investigation, giving the parties opportunities to discuss the case with senior Directorate-General for Competition officials. [41]
The Commission formalized these changes in its Best Practices on the Conduct of EC Merger Control Proceedings, adopted Jan. 20, 2004.[42] The Merger Best Practices provide that, immediately after the Commission opens an in-depth investigation, notifying parties should receive key documents, including “substantiated submissions of third parties running counter to the notifying parties’ own contentions.”[43] The Directorate-General also committed to “use its best endeavours” to provide timely access to those documents and to make further disclosures on an ad hoc basis as the investigation developed.[44]
Together, these measures moved evidentiary testing earlier in the process, when merging parties could still correct the factual record, answer third-party allegations, and address the Commission’s concerns before its position hardened.
C. Embedding Effects-Based Merger Analysis
Monti also announced guidelines that would provide a “sound economic framework” for assessing horizontal mergers—transactions between actual or potential competitors. The guidelines would explain how the Commission assesses a merger’s likely competitive effects and applies the concept of collective dominance. They would also address factors that could counter an initial finding of likely harm, including buyer power, ease of entry, and efficiencies.[45] The Commission adopted its Horizontal Merger Guidelines in 2004.[46]
The Commission gave this economic framework institutional support by creating the position of chief competition economist and recruiting more economists who specialized in how firms compete and markets operate.[47] These changes helped translate the guidelines’ effects-based principles into case investigations and decisions.
The reforms also changed the law governing merger review. The revised European Community Merger Regulation (ECMR), Regulation 139/2004, took effect May 1, 2004. It replaced the former dominance test with a broader inquiry into whether a transaction would “significantly impede effective competition in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position.” The new test retained dominance as a central concern but allowed the Commission to reach mergers that could substantially harm competition without creating or strengthening a dominant firm. Without the General Court’s judgments in Airtours, Schneider, and Tetra Laval, the substantive test likely would have remained largely unchanged.[48]
Two decades later, Guillaume Loriot, deputy director-general for mergers at the Directorate-General for Competition, credited the judgments with forcing the Commission into “deeper retrospection.” That process, he said, enabled “more rigorous, and all-encompassing reforms” that changed European Union merger control “for the better.”[49]
The Commission extended that reform trajectory when it published draft revised merger guidelines April 30, 2026, combining its horizontal and nonhorizontal guidelines into a single framework.[50] Executive Vice President Teresa Ribera had previewed the draft’s “more robust treatment of dynamic effects”—effects on innovation, investment, and competition over time—including both dynamic harms and efficiencies.[51]
That emphasis carries forward the central lesson of Airtours, Schneider, and Tetra Laval: The Commission must ground predictions of competitive harm in rigorous economic analysis and convincing evidence.
III. Article 102 Meets Closer Judicial Scrutiny
The Commission entered the Intel litigation with a formidable record in Article 102 appeals. Thibault Schrepel and Janneke Parrish identify Intel as its only Article 102 loss before the Court of Justice during Margrethe Vestager’s decade as competition commissioner.[52] Pinar Akman accordingly describes the 2017 ruling as “a clear turning point in the evolution of the law on the abuse of dominance.[53]
The Intel litigation ultimately produced three principal judgments: Intel 2017, which set aside the General Court’s 2014 judgment; Intel Renvoi, which annulled the Commission’s findings concerning Intel’s rebates and the resulting fine; and Intel 2024, which upheld the remand judgment.[54] The General Court later annulled Commission infringement decisions in Qualcomm and Bulgarian Energy Holding. Those judgments form part of a broader line of Article 102 cases demanding careful treatment of evidence and rigorous analysis of exclusionary effects.[55]
The cases echo the 2002 merger judgments in three respects. First, they require the Commission to document and disclose relevant third-party evidence, while distinguishing procedural lapses that materially impair a company’s defense from those that do not. Second, they require the Commission to consider evidence supporting and undermining its theory and to meet its burden with a coherent factual record. Third, they test theories of exclusion against actual market conditions, requiring evidence that the challenged conduct was capable of producing more than hypothetical anticompetitive effects. The courts did not deny the Commission discretion to pursue particular theories of harm. They instead required the Commission to prove that those theories fit the facts.
A. Access to the File and Rights of Defense
The three Article 102 judgments returned to a central theme of the merger cases: The Commission must give investigated companies a meaningful opportunity to test the evidence against them and present a full defense. That obligation covers evidence supporting the alleged infringement and potentially exculpatory material—evidence that could help disprove it—obtained through interviews with third parties. In Qualcomm and Bulgarian Energy Holding, failures to record and disclose such evidence materially impaired the companies’ ability to defend themselves. Intel involved a similar recordkeeping failure, but the courts found that it did not justify annulment.
Intel argued that the Commission had withheld potentially exculpatory information from a third-party interview, refused access to other third-party documents, and improperly denied a second oral hearing. The internal note that the Commission eventually disclosed contained no meaningful account of the interview, including “any indication of the content of the discussions” or “the nature of the information” that the interviewee had provided.[56] The Court of Justice nevertheless concluded that Intel had not shown that access to a fuller record during the administrative proceeding could have improved its defense.[57]
The Intel litigation clarified the Commission’s obligation to document third-party interviews.[58] The Commission must make an adequate record of every interview conducted to collect information about an investigation, including the substance of the information provided. This procedural duty complements the broader requirement that competition authorities meaningfully examine evidence submitted by an investigated company to show that its conduct could not restrict competition.[59] A failure to document an interview does not automatically invalidate a decision, but it may do so when the missing information could have materially assisted the company’s defense.
Qualcomm illustrates that distinction. The Commission’s 2018 decision found that Qualcomm had abused its dominant position by paying Apple to obtain its baseband chipsets exclusively from Qualcomm.[60] The General Court annulled the decision in full, relying on procedural defects that impaired Qualcomm’s rights of defense and flaws in the Commission’s analysis of competitive effects. It found that “the administrative procedure which led to the adoption of the contested decision is vitiated by a number of procedural errors which affected the applicant’s rights of defence.”[61] Alfonso Lamadrid described the court’s willingness to annul an Article 102 decision in full after finding such procedural errors as extraordinary.[62]
The Commission had failed to record properly or disclose fully several meetings and interviews with Qualcomm’s competitors and customers.[63] The General Court examined the withheld information’s probative value to determine whether the omissions had impaired Qualcomm’s defense. Some of that information went to a central issue: whether Intel had a viable competing chipset that Qualcomm’s payments could have excluded from the market.[64] Lamadrid argued that the judgment did not create new law but “simply requires the Commission to fulfill its (post-Intel) obligations regarding both procedure and substance” through a “clear, logical and thorough application of the law.”[65]
The General Court applied the same principles in Bulgarian Energy Holding. The Commission’s 2018 BEH Gas decision found that the Bulgarian Energy Holding (BEH) Group had restricted competitors’ access to essential gas infrastructure.[66] he court annulled that decision Oct. 25, 2023, on both substantive and procedural grounds. Although it upheld one isolated instance of exclusionary conduct, that conduct could not support the Commission’s finding of a single and continuous infringement.[67] The Commission appealed, and the case remained pending as of Aug. 31, 2026.[68]
The General Court also found that the Commission had infringed the BEH Group’s rights of defense by failing to document certain third-party interviews and disclose potentially exculpatory evidence. The omitted information proved important to BEH’s defense and contributed to the Commission’s decision. The court rejected any “supposed discretion” to exclude relevant evidence from the file. Such discretion would impair the undertaking’s defense and prevent the court from verifying the Commission’s compliance with Regulation 1/2003.[69]
Drawing on Intel and Qualcomm, the court reiterated that the Commission must record third-party meetings and interviews and give the investigated undertaking access to every document that might assist its defense. The principal exceptions cover other companies’ business secrets, internal Commission documents, and other confidential information.[70] Access to the file promotes equality of arms—the principle that each side must have a fair opportunity to present its case—and remains “integral” to the rights of defense.[71]
These cases establish a materiality standard rather than a rule of automatic annulment. In Intel, the inadequate record concerned one meeting with one third party, and Intel had received at least limited information about its contents. The General Court was therefore not persuaded that the omission materially impaired Intel’s defense.[72] Qualcomm involved an “exceptional number of procedural violations”: seven improperly recorded meetings with six third parties, including one meeting central to the Commission’s analysis and another involving a source who claimed anonymity.[73] BEH likewise involved omitted evidence that bore directly on the company’s defense and the Commission’s conclusions.
The parallel with the 2002 merger cases is direct. Airtours, Schneider, and Tetra Laval exposed investigative and decision-making powers insufficiently constrained by procedures capable of identifying unsupported conclusions before the Commission acted. Intel, Qualcomm, and Bulgarian Energy Holding reveal similar weaknesses in Article 102 enforcement. The later judgments therefore reinforce Monti’s earlier recognition that third parties can influence Commission investigations and that investigated companies need timely, meaningful opportunities to test their allegations and defend themselves.[74]
B. Evidence of Exclusionary Effects
The three Article 102 cases echoed the evidentiary concerns in Airtours, Schneider, and Tetra Laval. In each case, the court found that the Commission’s analysis had disregarded relevant evidence, including information that undermined its theory of harm. Merger review and Article 102 enforcement ask different legal questions: Merger review predicts a transaction’s likely effects, while Article 102 generally examines whether past conduct was capable of excluding competitors. Both inquiries nevertheless require concrete evidence grounded in actual market conditions, not abstract or hypothetical conclusions.
In Intel Renvoi, the General Court found that the Commission had not established to the required legal standard that Intel’s rebates were capable of foreclosing competitors.[75] The Commission had to examine all relevant circumstances and support its conclusion with a “precise and consistent body of evidence” that left “no residual doubt.” That obligation carried particular weight because Intel had offered a plausible alternative explanation for its conduct—one under which the rebates could not restrict competition or produce the alleged foreclosure effects.[76]
Jacques Buhart et al. identified three related defects in the Commission’s effects analysis in Qualcomm. First, the evidence was inconsistent or contradictory. Second, the Commission failed to consider “all the relevant factors,” including evidence that undercut its theory. Third, the remaining evidence “did not make it possible to support the Commission’s findings.” The analysis therefore could not substantiate the Commission’s conclusions to the required legal standard.[77]
The General Court applied the same evidentiary discipline in Bulgarian Energy Holding. The case involved an alleged refusal to grant access to an essential facility—infrastructure that competitors needed to operate in the related market. The Commission bore the burden of proving that the refusal was capable of producing exclusionary effects. More specifically, it had “to prove that that refusal was liable to eliminate all competition, on the part of the person requesting that service, on the related market.”[78] The Commission also had to establish that the complainant was an actual or potential competitor with a “sufficiently advanced project to enter the market.”[79]
The Commission failed to make that showing. In both Qualcomm and Bulgarian Energy Holding, the evidence did not establish that the firms allegedly excluded were viable actual or potential competitors. Without that connection between the challenged conduct and a realistic prospect of entry or expansion, the alleged exclusionary effects remained hypothetical.
These judgments do not require proof of actual anticompetitive effects in every Article 102 case. They do require the Commission to demonstrate, through coherent evidence and a complete assessment of market conditions, that the conduct was capable of producing those effects. That requirement reflects the same principle that shaped the merger judgments: A legally plausible theory of harm cannot substitute for proof that the theory fits the facts.
C. Testing Theories Against Market Reality
As w in the merger cases, the courts did not prevent the Commission from pursuing particular theories of harm in Intel, Qualcomm, or Bulgarian Energy Holding. They instead required rigorous economic analysis showing that the alleged exclusionary effects were plausible under actual market conditions.
The Court of Justice began that shift in its 2017 Intel decision.[80] When a dominant undertaking submits evidence that its loyalty rebates could not restrict competition, the Commission must examine all relevant circumstances. The court identified five factors: the practice’s market coverage, the conditions governing the rebates, their duration, their amount, and evidence of a strategy to exclude competitors as efficient as the dominant undertaking.[81]
On remand, the General Court examined the Commission’s application of the as-efficient-competitor (AEC) test. That test asks whether the challenged conduct could exclude a hypothetical competitor that operates as efficiently as the dominant firm. The court found errors in the Commission’s analysis and held that it had not adequately established the rebates’ capacity to foreclose such a competitor. It therefore annulled the relevant portions of the 2009 decision and the fine.[82]
The Commission appealed, but the Court of Justice upheld the Intel Renvoi judgment in October 2024.[83] It confirmed that the General Court must examine any argument capable of undermining the Commission’s AEC analysis, including challenges to the governing methodology and the probative value of the evidence. The resulting framework looks beyond structural indicators. It requires the Commission to assess the alleged exclusionary effect in light of all relevant facts, including market coverage, the terms and duration of the rebates, their amount, and any strategy to exclude as-efficient competitors.[84]
The General Court applied the same approach in Qualcomm. Although the procedural violations independently justified annulment, the court also reviewed the substance of the Commission’s decision in the interests of the administration of justice.[85] The Commission had failed to account for evidence that competing chipsets could not satisfy most of Apple’s technical requirements. Because Apple could not have switched those purchases to Qualcomm’s rivals even without the challenged payments, the payments could not have excluded competition for that demand.[86]
The court rejected an analysis based on a presumption that Qualcomm’s exclusivity payments were unlawful. It required the Commission to consider all relevant factual circumstances and establish effects that were more than hypothetical.[87] As the court explained:
[N]ot every exclusionary effect is necessarily detrimental to competition. Competition on the merits may, by definition, lead to the departure from the market or the marginalisation of competitors that are less efficient and so less attractive to consumers from the point of view of, among other things, price, choice, quality or innovation.[88]
Once Qualcomm challenged the Commission’s analysis, the Commission had to assess both the payments’ capacity to produce anticompetitive effects and their ability to foreclose at least as-efficient competitors.[89]
Bulgarian Energy Holding applied the same principle to a refusal-to-supply theory. The General Court emphasized that conduct restricting another company’s options does not necessarily restrict competition within the meaning of Article 102.[90] The Commission had to prove that the refusal to grant access to essential infrastructure was “liable to eliminate all competition, on the part of the person requesting that service, on the related market.”[91] The alleged exclusionary effects could not remain purely hypothetical.[92]
That inquiry required evidence that the party seeking access was an actual or potential competitor with a “sufficiently advanced project to enter the market.”[93] The complainant’s plans remained imprecise, and it had made no tangible access request that could support a credible refusal-to-supply claim.[94] The Commission therefore failed to show that the BEH Group’s conduct was capable of restricting competition in the Bulgarian gas market.[95]
Together, these cases move Article 102 analysis away from conclusions based principally on market structure, the form of the conduct, or presumptions of harm. The relevant question is how the conduct operates under actual market conditions, including whether a credible rival could enter, expand, or compete effectively. Ibáñez Colomo has similarly linked stronger judicial review to improvements in Commission enforcement and greater checks on administrative action.[96]
Akman argues that the shift toward economic, effects-based analysis emerged “through not wins but losses for the Commission and/or the Legal Service on appeals.” In her account, “[i]t is the CJEU which has actively—and perhaps despite the Commission and/or the Legal Service—reformed its jurisprudence to adopt an effects-based approach.”[97] As in the merger cases, judicial reversal supplied the pressure for doctrinal reform.
IV. Judicial Defeat and Institutional Learning
Successful challenges to Commission merger prohibitions were so rare before Airtours, Schneider, and Tetra Laval that an appeal could appear futile. The three annulments changed that perception by demonstrating that merger decisions faced meaningful judicial oversight. Commisioner Monti acknowledged that the judgments proved “beyond any doubt” that European Union courts conducted “meticulous and stringent” review of the Commission’s substantive analysis. He also recognized the practical consequence: “[I]t is clear that the [General Court] is now holding us to a very high standard of proof, and this has clear implications for the way in which we conduct our investigations and draft our decisions.”[98] Werner Berg summarized the lesson: The Commission had to strengthen its substantive review and economic analysis to produce decisions capable of surviving “in-depth juridical review.”[99]
The Commission had compiled a similarly strong record defending its Article 102 decisions before Intel, Qualcomm, and Bulgarian Energy Holding. Yet those judgments did not prompt a comparable public reckoning. The Commission’s responses to Qualcomm and Bulgarian Energy Holding largely stated that it would study the judgments and consider its next steps.[100] Its appeals in Intel and Bulgarian Energy Holding may suggest that it viewed the General Court’s judgments primarily as legal errors requiring appellate correction rather than evidence of broader institutional problems. The appeals cannot, however, substitute for a clear account of what lessons the Commission accepted or rejected.
This section examines that gap from two perspectives. First, it asks whether the revision of the European Union’s antitrust procedural rules should strengthen internal review, recordkeeping, access to evidence, and other safeguards implicated by the Article 102 judgments. Second, it considers whether the Commission’s draft Article 102 guidelines reflect the courts’ effects-based jurisprudence or retreat toward conduct categories and presumptions. The central question is whether the Commission has absorbed the judgments’ lessons internally—or missed an opportunity for a second Airtours moment.
A. Reform Without a Second Airtours Moment?
The cases examined above show how procedural failures can affect both the reliability of Commission decisions and the depth of judicial scrutiny. The 2004 merger reforms stand out because the Commission did more than address the specific due-process defects identified by the General Court. It changed the institutional structure of merger review. Independent economic analysis, peer review, greater management oversight, and earlier access to evidence allowed the Commission to test case teams’ conclusions before adopting a decision. These safeguards could expose weaknesses in the evidentiary record and reduce the risk of decisions unsupported by facts or plausible real-world effects. Many of the most consequential changes required no new legislation because the Commission could adopt them internally.
The resulting checks and balances were not confined to merger review. Many applied across the Commission’s competition-enforcement system, including Article 102 investigations.[101] Yet Intel, Qualcomm, and Bulgarian Energy Holding raise a difficult question: Do those safeguards operate effectively in abuse-of-dominance cases? The Commission has said little about the procedural implications of these defeats, despite judicial criticism at times comparable to that in the 2002 merger judgments.
European Commission President Ursula von der Leyen directed Executive Vice President Teresa Ribera to “strengthen and speed up enforcement of competition rules” and align that enforcement with the European Union’s industrial and sustainability goals.[102] The Commission then opened a public consultation July 10, 2025, on revising Regulation 1/2003 and its implementing regulation, Regulation 773/2004—the principal procedural rules governing EU antitrust investigations.[103] That revision offers a natural opportunity to examine the Commission’s internal investigative and decision-making processes, including how it records interviews, maintains complete case files, discloses exculpatory material, tests case teams’ conclusions, and ensures meaningful access to evidence.
Stakeholders have already argued that Intel and Qualcomm warrant tighter internal procedures, particularly rules ensuring complete investigatory files and effective access to relevant evidence.[104] Stronger and faster enforcement remains a legitimate goal, but speed can strain the rights of defense when internal safeguards fail. Procedural protections do not merely constrain enforcement. They improve its accuracy, strengthen its legitimacy, and make Commission decisions more likely to survive judicial review. The revision of Regulation 1/2003 should confront that relationship directly.
B. Effects in Principle, Presumptions in Practice
Intel, Qualcomm, and Bulgarian Energy Holding show that European Union courts can engage closely with complex economic questions. The courts examined the Commission’s evidentiary record, tested the probative value of its evidence, and scrutinized its economic models. This review does not reflect hostility toward Article 102 enforcement. Google Shopping illustrates the other side of the principle: The General Court accepted the Commission’s extensive factual and economic record, and the Court of Justice upheld that judgment and the €2.42 billion fine.[105] The Commission may therefore have absorbed some practical lessons by developing more detailed foreclosure theories, counterfactual analyses, and economic evidence in its cases.
The Commission has not publicly explained how Intel, Qualcomm, and Bulgarian Energy Holding affected its approach. Its August 2024 draft guidelines on exclusionary abuses do not resolve the question, and the guidelines remained in draft form as of Aug. 31, 2026.[106] The Commission has said the guidelines will reflect its enforcement experience and codify the courts’ Article 102 jurisprudence since its 2008 guidance on enforcement priorities.
A March 2023 policy brief from the Directorate-General for Competition described that jurisprudence in strongly effects-based terms. It stated that “[t]he effects-based approach promoted by the Commission is clearly reflected in these developments and is now firmly enshrined in the Union Courts’ case law.” The brief added that recent judgments had “confirmed and endorsed the main elements of an effects-based approach to exclusionary conduct by dominant undertakings.”[107]
The draft guidelines have nevertheless drawn criticism for selectively presenting the case law and reviving a more form-based approach. An effects-based approach asks how conduct is likely to operate under actual market conditions. A form-based approach relies more heavily on the category into which the conduct falls and presumptions attached to that category. The draft guidelines identify some conduct as presumptively capable of producing exclusionary effects, potentially shifting the evidentiary burden away from the Commission’s affirmative demonstration of competitive harm.
Pinar Akman, Chiara Fumagalli, and Massimo Motta argue that the draft uses the case law selectively, particularly the judgments beginning with Intel.[108] Dirk Auer and Lazar Radic characterize its reliance on conduct categories and presumptions as a repudiation of the courts’ effects-based analysis.[109] Akman, Fumagalli, and Motta identify the central tension:
[The draft guidelines] do not embrace aspects of the case law that are effects-orientated and either overemphasise the operational value of certain concepts (e.g. “competition on the merits”) from the formalistic era of the case law or disregard statements from the case law that evidence an effects-based approach.[110]
The Article 102 jurisprudence is complex and does not always yield a single, coherent narrative.[111] The cases examined here are nonetheless clear on three points. The Commission must respect procedural rights, consider evidence that supports and undermines its theory, and establish through cogent evidence that the conduct was capable of producing nonhypothetical exclusionary effects. Guidelines intended to codify that jurisprudence should make those requirements more transparent, not dilute them through presumptions that substitute the form of conduct for its likely competitive effect.
V. Conclusions
Judicial victories and defeats both clarify the law. Because Article 102 annulments remain rare, Intel, Qualcomm, and Bulgarian Energy Holding carry particular weight. Together, they clarify the Commission’s duties to maintain and disclose a complete evidentiary record, protect the rights of defense, satisfy the applicable standard of proof, and ground findings of exclusionary effects in actual market conditions. They also confirm that European Union courts can scrutinize complex economic evidence without displacing the Commission’s authority to select and pursue legitimate theories of harm.
The Commission need not redesign its procedures after every annulment. Targeted judicial corrections form part of any mature enforcement system. These cases do, however, raise broader concerns. Qualcomm and Bulgarian Energy Holding exposed material failures to record interviews, disclose relevant evidence, and preserve equality of arms. Intel, Qualcomm, and Bulgarian Energy Holding also revealed substantive analyses that did not adequately connect the challenged conduct to realistic exclusionary effects. The recurrence of these problems warrants closer examination of whether safeguards introduced after the 2002 merger judgments work as intended in Article 102 investigations.
That review should focus on practical mechanisms. The Commission should ensure that case files contain complete records of third-party interviews and all relevant inculpatory and exculpatory evidence. It should give investigated companies timely access to that material and meaningful opportunities to answer it. A better-resourced Hearing Officer, independent economic review, stronger management oversight, and peer review by officials outside the case team could also test preliminary conclusions before they harden. These safeguards would help counter investigators’ tendency to favor their initial theory, conserve limited enforcement resources, and produce decisions more likely to withstand judicial review.
The Commission’s current reform projects provide two opportunities to act. The revision of Regulation 1/2003 can strengthen investigative procedures, access to the file, and internal review. The Article 102 guidelines can provide substantive clarity by faithfully reflecting the courts’ effects-based jurisprudence. Presumptions may simplify analysis in appropriate cases, but they should not replace evidence that the conduct was capable of excluding competition under the relevant market conditions. Nor should they deprive investigated companies of a genuine opportunity to rebut the Commission’s theory.
These protections will matter even more as competition enforcement becomes intertwined with industrial-policy goals such as resilience and strategic autonomy. Those priorities may intensify political pressure on individual investigations and sharpen public scrutiny of the Commission’s decisions. Transparent standards, rigorous economics, and credible internal checks help preserve the independence and legitimacy of enforcement under those conditions.
The Article 102 judgments may not demand a replica of the post-Airtours reform package. But they do call for the same institutional willingness to learn from defeat.
[1] See Case T-342/99, Airtours plc v. Comm’n, 2002 E.C.R. II-2585; Case T-310/01, Schneider Electric SA v. Comm’n, 2002 E.C.R. II-4071; Case T-5/02, Tetra Laval BV v. Comm’n, 2002 E.C.R. II-4381.
[2] See Case C-413/14 P, Intel Corp. v. Comm’n, ECLI:EU:C:2017:632 [hereinafter Intel 2017]; Case T-286/09 RENV, Intel Corp. v. Comm’n, ECLI:EU:T:2022:19 [hereinafter Intel Renvoi]; Case C-240/22 P, Comm’n v. Intel Corp., ECLI:EU:C:2024:915 [hereinafter Intel 2024]; Case T-235/18, Qualcomm, Inc. v. Comm’n, ECLI:EU:T:2022:358; Case T-136/19, Bulgarian Energy Holding EAD v. Comm’n, ECLI:EU:T:2023:669.
[3] See, e.g., Airtours/First Choice, Schneider/Legrand, Tetra Laval/Sidel, and General Electric/Honeywell, as well as other transactions the Commission prohibited between 1999 and 2001, including Volvo/Scania, WorldCom/Sprint, SCA/Metsä Tissue, and CVC/Lenzing. See Nicholas Levy, EU Merger Control: A Brief History, Cleary Gottlieb (Feb. 3, 2004), https://www.clearygottlieb.com/-/media/organize-archive/cgsh/files/publication-pdfs/eu-merger-control—a-brief-history.pdf. Parties also withdrew several high-profile notifications when faced with likely prohibition, including Skandinaviska Enskilda Bank/FöreningsSparbanken and EMI/Time Warner.
[4] WilmerHale, After Three Losses, Super Mario Strikes Back (Jan. 1, 2003), https://www.wilmerhale.com/en/insights/publications/after-three-losses-super-mario-strikes-back-winter-2003.
[5] Werner Berg, New EC Merger Regulation: A First Assessment of Its Practical Impact, 24 Nw. J. Int’l L. & Bus. 683 (2004), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1586&context=njilb (citing Christian Ahlborn, Airtours/First Choice, In Competition (June 2002)); Nicholas Levy, Mario Monti’s Legacy in EC Merger Control, 1 Competition Pol’y Int’l 99 (2005), https://www.clearygottlieb.com/-/media/organize-archive/cgsh/files/publication-pdfs/mario-monti-s-legacy-in-ec-merger-control.pdf; Herwig Hofmann, Good Governance in European Merger Control: Due Process and Checks and Balances Under Review, 24 Eur. Competition L. Rev. 114 (2003); Mathew Heim, Problems and Process: European Merger Control and How to Use It, 4 J. Pub. Affs. 73 (2004); Damien J. Neven & Lars-Hendrik Röller, Discrepancies Between Markets and Regulators: An Analysis of the First Ten Years of EU Merger Control, in The Pros and Cons of Merger Control 13 (Swedish Competition Authority ed., 2002), https://www.konkurrensverket.se/globalassets/dokument/informationsmaterial/rapporter-och-broschyrer/pros-and-cons/rapport_pros-and-cons_2002_the-pros-and-cons-of-merger-control.pdf.
[6] Schneider Electric, 2002 E.C.R. II-4071, ¶ 453.
[7] Id. ¶¶ 458, 460.
[8] Id. ¶¶ 454, 462.
[9] The Commission appealed the General Court’s Tetra Laval judgment, arguing that the court had interfered excessively and imposed an unduly high standard of proof for conglomerate effects. The CJEU dismissed the appeal, holding that the General Court acted within the proper scope of judicial review when it examined whether the Commission’s evidence was accurate, reliable, consistent, and sufficient to support its conclusions. See Case C-12/03 P, Comm’n v. Tetra Laval BV, ECLI:EU:C:2005:87, 2005 E.C.R. I-987.
[10] Tetra Laval, ECLI:EU:T:2002:264, ¶¶ 89, 92, 117.
[11] Airtours, 2002 E.C.R. II-2585, ¶ 63.
[12] Id. ¶ 210.
[13] Id. ¶ 294.
[14] Schneider Electric, 2002 E.C.R. II-4071, ¶ 409.
[15] Id. ¶¶ 349, 409.
[16] Id. ¶¶ 336, 398.
[17] Id. ¶ 411.
[18] See Mario Monti, European Comm’r for Competition, EU Competition Policy, Address at the Fordham Annual Conference on International Antitrust Law & Policy (Oct. 31, 2002), https://ec.europa.eu/commission/presscorner/api/files/document/print/en/speech_02_533/SPEECH_02_533_EN.pdf.
[19] Tetra Laval, 2002 E.C.R. II-4381, ¶ 137.
[20] Id. ¶ 162.
[21] Id. ¶ 246.
[22] Schneider Electric, 2002 E.C.R. II-4071, ¶ 437.
[23] Airtours, 2002 E.C.R. II-2585, ¶ 63.
[24] Id.
[25] Pablo Ibáñez Colomo, Law, Policy, Expertise: Hallmarks of Effective Judicial Review in EU Competition Law, 24 Cambridge Y.B. Eur. Legal Stud. 143 (2022), https://doi.org/10.1017/cel.2022.7.
[26] Mario Monti, European Comm’r for Competition, Merger Control in the European Union: A Radical Reform, Speech/02/545 (Nov. 7, 2002), https://ec.europa.eu/commission/presscorner/api/files/document/print/en/speech_02_545/SPEECH_02_545_EN.pdf.
[27] Tetra Laval, 2002 E.C.R. II-4381, ¶ 137.
[28] Id. ¶ 162.
[29] Id.
[30] Levy, supra note 3.
[31] European Commission, Green Paper on the Review of Council Regulation (EEC) No. 4064/89, COM (2001) 745 final (Dec. 11, 2001).
[32] Levy, supra note 3.
[33] Monti, supra note 26.
[34] Neither the General Court nor Commissioner Mario Monti used the term “checks and balances.” They instead discussed evidence, burdens of proof, Commission errors, judicial-review standards, and modernization. Commentators later used “checks and balances” to describe the actors who safeguard due process, procedural fairness, and objectivity in Commission decision-making. The Commission eventually adopted the term. In Merck/Sigma-Aldrich, the hearing officer identified the commissioner for competition and cabinet, senior Directorate-General for Competition officials, the relevant horizontal-coordination unit, the Chief Economist’s Team, the Legal Service, associated Commission services, the hearing officer, the Advisory Committee on Concentrations, and possible peer review. See Final Report of the Hearing Officer ¶ 32 & n.39, Case M.8181, Merck/Sigma-Aldrich (Apr. 30, 2021), https://ec.europa.eu/competition/mergers/cases1/202212/M_8181_8229078_2374_3.pdf; see also Directorate-General for Competition, European Commission, Proceedings for the Application of Articles 101 and 102 TFEU: Key Actors and Checks and Balances, https://competition-policy.ec.europa.eu/system/files/2021-04/key_actors_checks_balances_art_101_102_factsheet.pdf.
[35] Monti, supra note 26.
[36] Id.
[37] Pieter Van Cleynenbreugel, The Hearing Officer’s Extended Mandate: Whose Special Friend in the Conduct of EU Competition Proceedings?, 33 Eur. Competition L. Rev. 286 (2012).
[38] See Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the Terms of Reference of Hearing Officers in Certain Competition Proceedings, 2001 O.J. (L 162) 21, superseded by Decision of the President of the European Commission 2011/695/EU of 13 October 2011 on the Function and Terms of Reference of the Hearing Officer in Certain Competition Proceedings, 2011 O.J. (L 275) 29.
[39] Pablo Ibáñez Colomo, Judicial Review in EU Merger Control: Towards Deference on Issues of Law?, 4 Eur. L. Open 441 (2025), https://doi.org/10.1017/elo.2025.10016.
[40] Monti, supra note 26.
[41] Commissioner Monti acknowledged criticism that the Commission was too susceptible to influence from merging parties’ competitors. He argued that merging parties should have ample opportunity to defend their positions and confront third-party concerns early in the investigation. Id. at 7.
[42] Directorate-General for Competition, European Commission, Best Practices on the Conduct of EC Merger Control Proceedings (Jan. 20, 2004), https://competition-policy.ec.europa.eu/document/download/a288a6d8-3962-4072-b6a1-93e2ba08d12e_en?filename=proceedings.pdf [hereinafter Merger Best Practices].
[43] Id. ¶ 45.
[44] Id. ¶ 46.
[45] Monti, supra note 26.
[46] Guidelines on the Assessment of Horizontal Mergers Under the Council Regulation on the Control of Concentrations Between Undertakings, 2004 O.J. (C 31) 5.
[47] Monti, the first economist appointed competition commissioner, emphasized economic analysis and the recruitment of industrial-organization economists to DG Competition. Director-General Philip Lowe, also an economist, supported that effort. Monti described it as a central goal: “I should like to underline that an increased economic approach in the interpretation of our rules was, indeed, one of my main objectives when I took on my new responsibilities as Competition Commissioner.” Monti, supra note 18, at 7.
[48] See Berg, supra note 5.
[49] Guillaume Loriot, Reflecting on 20 Years of the EU Merger Regulation, Keynote Address at Modern EU and UK Merger Control: 20th Anniversary—Two Decades of Regulation 139/04 and the Enterprise Act Regime (Feb. 27, 2024), https://competition-policy.ec.europa.eu/document/download/ca447d8a-b2b7-4583-b983-753b3385ac86_en?filename=20240227_Kings_College_Latham_Merger_Conference_London_Guillaume-Loriot_keynote_speech.pdf.
[50] See European Commission, Review of the Merger Guidelines, https://competition-policy.ec.europa.eu/mergers/review-merger-guidelines_en (last visited Aug. 30, 2026).
[51] Teresa Ribera, Executive Vice President of the European Commission, Keynote Speech at the 23rd International Conference on Competition (IKK) (Mar. 12, 2026), https://ec.europa.eu/commission/presscorner/detail/en/speech_26_602.
[52] Thibault Schrepel and Janneke Parrish examined the Commission’s record in competition cases before the Court of Justice, excluding the General Court, from Nov. 1, 2014, through Nov. 30, 2024—Margrethe Vestager’s tenure as competition commissioner. They identify Intel as the Commission’s only Article 102 loss during that period and report no Article 102 defeats involving novel theories of harm or procedural issues. See Thibault Schrepel & Janneke Parrish, Mapping Reversals: An Empirical Account of Margrethe Vestager’s Track Record Before the Court of Justice of the European Union, 22 Eur. Competition J. 63 (2026), https://doi.org/10.1080/17441056.2025.2511425.
[53] Pinar Akman, A Critical Inquiry into ‘Abuse’ in EU Competition Law, 44 Oxford J. Legal Stud. 405 (2024), https://doi.org/10.1093/ojls/gqae008.
[54] For purposes of this paper, the principal Intel decisions are Intel 2017, which set aside the General Court’s 2014 judgment; Intel Renvoi, which annulled the Commission’s findings concerning Intel’s rebates and the resulting fine; and Intel 2024, which upheld Intel Renvoi. See supra note 2.
[55] This section does not exhaust the European courts’ jurisprudence. It focuses on decisions whose holdings and broader statements echo Airtours, Schneider Electric, and Tetra Laval. Other Article 102 judgments reinforce the reasoning in Intel, Qualcomm, and Bulgarian Energy Holding, including Case T-612/17, Google LLC v. Commission, ECLI:EU:T:2021:763; Case C-377/20, Servizio Elettrico Nazionale SpA v. Autorità Garante della Concorrenza e del Mercato, ECLI:EU:C:2022:379; and Case C-680/20, Unilever Italia Mkt. Operations Srl v. Autorità Garante della Concorrenza e del Mercato, ECLI:EU:C:2023:33. In Google (Shopping), the General Court largely upheld the Commission’s decision but articulated demanding standards for its treatment of evidence. Servizio Elettrico Nazionale and Unilever Italia, both preliminary-reference cases, extended Intel’s evidentiary logic beyond exclusivity rebates. They required competition authorities to assess exclusionary capability in light of all relevant circumstances and treated evidence of actual market performance as relevant, though not dispositive. The Court of Justice also held that when a dominant undertaking presents evidence that its conduct could not produce anticompetitive effects, competition authorities must examine that evidence carefully and impartially. Although these cases did not review the Commission’s procedural framework, the Court grounded that obligation in the right to be heard. See Servizio Elettrico Nazionale, ECLI:EU:C:2022:379, ¶¶ 50–54; Unilever Italia, ECLI:EU:C:2023:33, ¶¶ 47–62.
[56] Intel Renvoi, ECLI:EU:T:2022:19, ¶ 102.
[57] Intel 2017, ECLI:EU:C:2017:632, ¶¶ 94–102.
[58] Intel Renvoi, ECLI:EU:T:2022:19, ¶ 93.
[59] See Ibáñez Colomo, supra note 25; see also Servizio Elettrico Nazionale, ECLI:EU:C:2022:379, ¶ 51 (holding that, when a dominant undertaking submits supporting evidence, the competition authority must determine whether the challenged conduct was capable of restricting competition under the particular circumstances).
[60] Commission Decision C(2018) 240 final of 24 January 2018 Relating to a Proceeding Under Article 102 TFEU and Article 54 of the EEA Agreement, Case AT.40220, Qualcomm (Exclusivity Payments).
[61] Qualcomm, ECLI:EU:T:2022:358, ¶ 344.
[62] Alfonso Lamadrid, Case T-235/18, Qualcomm v. European Commission (Part I: Procedure), Chillin’Competition (June 27, 2022), https://chillingcompetition.com/2022/06/27/case-t-235-18-qualcomm-v-european-commission-part-i-procedure.
[63] The Commission also failed to maintain proper records of these meetings or include them in the case file. Qualcomm, ECLI:EU:T:2022:358, ¶¶ 207–09, 256–59, 291–94. See also Council Regulation 1/2003, art. 19, 2003 O.J. (L 1) 1, which governs Commission interviews conducted to collect information related to an investigation.
[64] Qualcomm, ECLI:EU:T:2022:358, ¶ 279. The General Court also found serious due-process defects that infringed Qualcomm’s rights of defense. Material differences between the Commission’s statement of objections and final decision rendered irrelevant the data and economic arguments on which Qualcomm had relied. The court explained that this defense “is of no practical effect if the scope of the conduct concerned is modified by the Commission after the [statement of objections].” Id. ¶¶ 328, 333–352.
[65] Lamadrid, supra note 62.
[66] Commission Decision C(2018) 8806 final of 17 December 2018 Relating to a Proceeding Under Article 102 TFEU and Article 54 of the EEA Agreement, Case AT.39849, BEH Gas.
[67] See European Commission, Commission Staff Working Document Accompanying the Report from the Commission on Competition Policy 2023, SWD (2024) 53 final (Mar. 6, 2024), https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52024SC0053. The General Court upheld one isolated instance of exclusionary conduct during part of the infringement period. It nonetheless annulled the Commission’s decision in full because that conduct alone could not establish the alleged single and continuous infringement, given the factual and legal defects in the remaining elements.
[68] The Commission appealed the General Court’s judgment on Jan. 10, 2024. As of Aug. 31, 2026, the appeal remained pending. Case C-14/24 P, Comm’n v. Bulgarian Energy Holding EAD. Advocate General Medina issued her opinion on April 23, 2026. Opinion of Advocate General Medina, Case C-14/24 P, Comm’n v. Bulgarian Energy Holding EAD, ECLI:EU:C:2026:347.
[69] Bulgarian Energy Holding, ECLI:EU:T:2023:669, ¶¶ 1170–1172; Qualcomm, ECLI:EU:T:2022:358, ¶ 344.
[70] Bulgarian Energy Holding, ECLI:EU:T:2023:669, ¶ 1154.
[71] Id. ¶¶ 1152, 1155. See also Council Regulation (EC) No. 1/2003, art. 27(2), 2003 O.J. (L 1) 1, 13; Commission Regulation (EC) No. 773/2004 of 7 April 2004 Relating to the Conduct of Proceedings by the Commission Pursuant to Articles 81 and 82 of the EC Treaty, art. 15(1)–(2), 2004 O.J. (L 123) 18, 22.
[72] Intel Renvoi, ECLI:EU:T:2022:19, ¶¶ 50–51.
[73] Assimakis Komninos & James Killick, The EU General Court Quashes Dominant Chip Manufacturer’s Antitrust Fine for “Exclusivity Payments” and Censures the European Commission for Multiple Due-Process and Substantive Errors (Qualcomm), e-Competitions, June 2022, Art. No. 107095 (June 15, 2022).
[74] Monti, supra note 26.
[75] Intel Renvoi, ECLI:EU:T:2022:19, ¶¶ 168–335.
[76] Id. ¶¶ 163, 255, 522.
[77] Jacques Buhart et al., The EU General Court Annuls the Commission’s Decision Regarding a Dominant Chip Manufacturer as a Result of Insufficient Analysis of Anticompetitive Effects and on Procedural Grounds (Qualcomm), e-Competitions, June 2022, Art. No. 112054 (June 15, 2022).
[78] Bulgarian Energy Holding, ECLI:EU:T:2023:669, ¶ 279.
[79] Id. ¶ 281.
[80] Intel 2017, ECLI:EU:C:2017:632.
[81] The five factors are the practice’s market coverage; the conditions governing the rebates; their duration; their amount; and evidence of a strategy to exclude competitors as efficient as the dominant undertaking. See id. ¶ 139.
[82] Intel Renvoi, ECLI:EU:T:2022:19, ¶ 499.
[83] Intel 2024, ECLI:EU:C:2024:915.
[84] Org. for Econ. Coop. & Dev. [OECD], The Standard and the Burden of Proof in Competition Law Cases, OECD Roundtables on Competition Policy Papers No. 318 (2024), https://doi.org/10.1787/0199f63f-en.
[85] Qualcomm, ECLI:EU:T:2022:358, ¶ 346.
[86] Id. ¶¶ 409–24. Lamadrid argues that the judgment applied counterfactual logic without using the term. Because Apple could not have switched to rivals absent Qualcomm’s payments, those payments could not have restricted competition. Alfonso Lamadrid, Case T-235/18, Qualcomm v. European Commission (Part II: Substance), Chillin’Competition (July 11, 2022), https://chillingcompetition.com/2022/07/11/case-t-235-18-qualcomm-v-european-commission-part-ii-substance.
[87] Qualcomm, ECLI:EU:T:2022:358, ¶¶ 355, 396–97; see also Ibáñez Colomo, supra note 25.
[88] Qualcomm, ECLI:EU:T:2022:358, ¶ 351.
[89] Id. ¶ 424.
[90] See Bulgarian Energy Holding, ECLI:EU:T:2023:669, ¶¶ 945–49; see also Kristi Georgieva & Niamh Martyn, Bulgarian Energy Holding v. Commission (Case T-136/19): Revamped Energy to Overturn Abuse of Dominance Decisions on Account of Errors of Fact and Assessment, Cleary Antitrust Watch (Oct. 25, 2023), https://www.clearyantitrustwatch.com/2023/10/bulgarian-energy-holding-v-commission-case-t-136-19-revamped-energy-to-overturn-abuse-of-dominance-decisions-on-account-of-errors-of-fact-and-assessment.
[91] Bulgarian Energy Holding, ECLI:EU:T:2023:669, ¶ 279.
[92] Id. ¶ 282.
[93] Id. ¶ 281.
[94] Id. ¶¶ 280–81.
[95] Bas Braeken et al., The EU General Court Annuls a €77M Fine Imposed on a Bulgarian Gas Company Due to a Lack of Evidence and Procedural Flaws (Bulgarian Energy Holding), e-Competitions, Oct. 2023, Art. No. 121154 (Oct. 25, 2023).
[96] Ibáñez Colomo, supra note 39.
[97] Akman, supra note 53.
[98] Monti, supra note 26.
[99] Berg, supra note 5.
[100] After the Qualcomm judgment, the Commission said it would study the ruling and consider its next steps. Foo Yun Chee, Qualcomm Wins Fight Against $1 Billion EU Antitrust Fine, Reuters (June 15, 2022), https://www.reuters.com/technology/eu-court-rejects-1-bln-eu-antitrust-fine-against-qualcomm-2022-06-15. The Commission gave a similar response after the BEH judgment. Directorate-General for Competition, Weekly e-News, No. 37/2023 (Oct. 27, 2023).
[101] See, e.g., Monti, supra note 26; see also Ibáñez Colomo, supra note 39.
[102] Letter from Ursula von der Leyen, President, European Commission, to Teresa Ribera Rodríguez, Executive Vice-President-Designate for a Clean, Just and Competitive Transition (Sept. 17, 2024), https://commission.europa.eu/document/download/5b1aaee5-681f-470b-9fd5-aee14e106196_en?filename=Mission%20letter%20-%20RIBERA.pdf.
[103] Council Regulation 1/2003 of Dec. 16, 2002, on the Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty, 2003 O.J. (L 1) 1; Commission Regulation 773/2004 of Apr. 7, 2004, Relating to the Conduct of Proceedings by the Commission Pursuant to Articles 81 and 82 of the EC Treaty, 2004 O.J. (L 123) 18 [hereinafter Regulation 773/2004]; see also European Commission, Commission Staff Working Document: Evaluation of Regulations 1/2003 and 773/2004, SWD(2024) 216 final (Sept. 5, 2024), https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13431-EU-antitrust-procedural-rules-evaluation_en.
[104] The European Competition Lawyers Forum argued that Intel and Qualcomm raised evidentiary-quality concerns that the review of Regulation 1/2003 should address. European Competition Lawyers Forum, Contribution to the Public Consultation: Reforms to Regulation 1/2003 (Oct. 24, 2022). Participants in the Commission’s evaluation likewise questioned whether the Commission maintained complete case files containing all relevant evidence, including exculpatory material. European Commission, supra note 103, at 144.
[105] The CJEU dismissed Google and Alphabet’s appeal, leaving in place the General Court’s judgment and the €2.42 billion fine. Case C-48/22 P, Google LLC & Alphabet Inc. v. Comm’n (Google Shopping), ECLI:EU:C:2024:726.
[106] European Commission, Press Release IP/24/3623, Commission Seeks Feedback on Draft Antitrust Guidelines on Exclusionary Abuses (Aug. 1, 2024), https://ec.europa.eu/commission/presscorner/detail/en/ip_24_3623.
[107] Linsey McCallum et al., A Dynamic and Workable Effects-Based Approach to Abuse of Dominance, Competition Policy Brief No. 1/2023 (Eur. Comm’n, Directorate-Gen. for Competition Mar. 2023), https://doi.org/10.2763/731952.
[108] Pinar Akman, Chiara Fumagalli & Massimo Motta, The European Commission’s Draft Guidelines on Exclusionary Abuses: A Law and Economics Critique and Recommendations, 16 J. Eur. Competition L. & Prac. 234 (2025), https://doi.org/10.1093/jeclap/lpaf020.
[109] Dirk Auer & Lazar Radic, The Commission’s Article 102 TFEU Guidelines: Consolidation or Creation?, SSRN Scholarly Paper No. 5134897 (2025), https://doi.org/10.2139/ssrn.5134897.
[110] Akman et al., supra note 108.
[111] See, e.g., Fernando Castillo de la Torre, The Dwindling Law in Article 102 TFEU, in Article 102 TFEU: Past, Present and Future ch. 6 (Assimakis Komninos & Ekaterina Rousseva eds., 2025).