Key Points:

- The ECJ’s Tomra decision confirms that the use of individualised and retroactive rebates by a dominant firm is a per se abuse, and it is not necessary to prove anti-competitive effects or intent.

- The Tomra decision is at odds with the European Commission’s 2009 Guidelines on the abuse of a dominant position, which advocate an effects-based approach to determine whether the proposed rebate had the actual effect of foreclosing competitors.

- Until the legal position is clarified by an EU court decision reviewing a Commission action applying the 2009 Guidelines, dominant companies should avoid using individualised and retroactive rebates, and should also undertake a review of any rebate scheme that was adopted in reliance on the effects based approach described in the 2009 Guidelines.