Now this study turns to consider the issue from a legal perspective. The key issue here concerns the extent to which the Commission can adopt an ef-fects-based approach, namely as efficient competitor test, to determine whether the practices of a dominant firm is an abuse where this approach is not set out in any Treaty provisions or legislation in the EU.
53 As seen earlier, the Commission based its views on the fact that Intel had large market shares in the market and that a potential entrant was faced with significant intellectual property barriers.
3.3.1 Application of a non-binding measure?
As to whether the Guidance Paper applies to this case, the Commission on the one hand noted that the Guidance Paper was not intended to constitute a statement of the law. According to the Decision, the Guidance Paper did not apply to proceedings that had already been initiated before it was published, such as this case. On the other hand, the Commission stated that the Decision was in line with the ‘orientations’ set out in the Guidance Paper. The Commis-sion held that the Guidance Paper did not apply to the Intel case, because first, it was not intended to constitute a statement of the law, and it was therefore non-legally binding. Second, the Commission published the document after it initiated the proceedings against Intel. What the Commission emphasized was that it made the Decision without applying the non-legally binding document, but the analysis and conclusion of this Decision appeared to be consistent with the objectives of the document.
Which parts of the Decision were consistent with the objectives of the Guidance Paper? The Commission gave an answer in paragraph 1002 that ‘[o]
ne possible way of examining whether exclusivity rebates are capable or likely to cause anticompetitive foreclosure is to conduct an as efficient competitor analysis’54. This means that as efficient competitor test was one of the econom-ic tests that can be employed to examine the exclusiveness of the Intel rebates scheme. The Commission decided to use this economic test instead of others, and this test appeared to be the one recommended by the document.
Was it possible for Intel to realize that as efficient competitor test would be employed to assess the rebates scheme at issue? This is a crucial question that the Commission avoided to answer. The Commission said that it did not apply the Guidance Paper, a non-legally binding measure in which as efficient
54 Supra note 1, para. 1002.
competitor test was set out, to the Intel case, but it seems that this was not so.
Given the huge portion of economic analysis based on the test in the Decision, it is obvious that the Commission applied the Guidance Paper, in particular as efficient competitor test set out in the document, to the case. The Commission regarded this test as the best strategy to determine whether the Intel rebates scheme was foreclosing. As a matter of fact, the analysis based on application of the test can be found in paragraphs 1002 to 1576 (pages 302 to 453) of the Decision. The way in which the Commission applied the test shows that the Commission did so as if the Guidance Paper was legally binding.
3.3.2 Violation of the principle of legal certainty?
This study argues that the application of as efficient competitor test is flawed and the test should not have been performed in the Intel Decision be-cause Intel could not find it anywhere in EU law. Even the Guidance Gaper does not provide an example or a general formula to explain how the test can be employed.
The application of the test has constituted a violation of the principle of legal certainty, a widely recognized principle of EU law55. Legal certainty, sometimes referred to as ‘legal security’ (sécurité juridique, in French) is a concept which cannot be easily explained in a few words, but the principle re-quires in particular that rules involving negative consequences for individuals should be clear and precise and their application predictable for those subject to them56. Just as Trevor Hartley has noted, ‘predictability is probably the core
55 Case C 110/03, Belgium v. Commission, 2005 E.C.R I-2801, para. 30; Case C 2/06, Willy Kempter KG v. Hauptzollamt Hamburg-Jonas, 2008 E.C.R I-411, para. 37; and, Case C 201/08, Plantanol GmbH & Co. KG v. Hauptzollamt Darm-stadt, 2009 E.C.R I-8343, para. 43 and 44.
56 Case C 226/08, Stadt Papenburg v. Bundesrepublik Deutschland, 2010 E.C.R I-131, para. 45; see also Case C 63/93, Duff v. Minister for Agriculture and Food, 1996 E.C.R I-569, para. 20; Case C-17/03, Vereniging voor Energie, Milieu en Water and Others v. Directeur van de Dienst uitvoering en toezicht energie, 2005
aspect of [the principle of legal certainty]’57. To put it differently, individuals must know their rights and obligations precisely and they must be able to rely on them58. In addition, that imperative of legal certainty must be observed all the more strictly in the case of rules liable to have financial consequences59.
As regards decisions made by the Commission under Article 102 TFEU, the application of as efficient competitor test definitely involves possible nega-tive consequences for dominant firms. The test should be clear and precise under the TFEU or the other legislation in the Union. The application of the test must be predictable for any undertakings subject to this test. In the pres-ent case, Intel has initiated court proceedings against the Commission before the General Court. The Court should focus on whether it was possible for Intel to realise that the test would be applied to assess the rebates scheme at issue, which could eventually lead to the conclusion that the implementation of the scheme constituted an abuse of dominant position under Article 102 TFEU.
According to the Decision, the Commission adopted the measure after Intel implemented the rebates scheme. As it was impossible for Intel to get access to an unpublished document, the Intel Decision should be annulled for that the application of as efficient competitor test violated the principle of legal cer-tainty.
E.C.R I-4983, para. 80; and Case C 76/06 P, Britannia Alloys & Chemicals v.
Commission, 2007 E.C.R I-4405, para. 79.
57 An introduction of this principle recognised by the European Court can be found in tRevoR haRtLey, the FoundationsoF euRopean Community Law 146-151 (5th ed. 2003).
58 Case C 158/06, Stichting ROM-projecten v. Staatssecretaris van Economische Zaken, 2007 E.C.R I-5103, para. 25; and Case C 345/06, Gottfried Heinrich, 2009 E.C.R I-1659, para. 44.
59 The Stichting ROM-projecten case, para. 26; Case C 94/05, Emsland-Stärke GmbH v. Landwirtschaftskammer Hannover, 2006 E.C.R I-2619, para. 43; and C-248/04, Koninklijke Coöperatie Cosun UA v. Minister van Landbouw, 2006 E.C.R I-10229, para. 79.
3.4 No firm basis for the conclusion of naked restrictions