Tomra v Commission of the European Communities: Reversing Progress on Rebates?
European Competition Law Review, Issue 3, 2011
Posted: 14 Dec 2016
Date Written: June 1, 2011
In March 2006 the European Commission found that Tomra, a Norwegian producer of Reverse Vending Machines, had abused its dominance through the use of contracts that included exclusivity provisions, quantity commitments and retroactive rebates. The General Court of the European Union (the “General Court”) upheld the Commission’s decision in September 2010.
Tomra is the General Court’s first decision on loyalty rebates since the Commission’s adoption of an effects-based approach in its Guidance Paper on exclusionary conduct under Article 82 (now Article 102) in February 2009, and its decision on Intel in May of the same year (which relied on the Guidance Paper). Effects-based arguments were presented by Tomra before both the Commission and the General Court. Against this backdrop, the General Court’s judgement in Tomra is important as it provides an early indication on whether the General Court is prepared to start embracing a more explicit economic approach when analysing abuse of dominance and rebates. This article reviews the implications of the Tomra judgement.
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