Rethinking the ‘as efficient competitor’ test: assessing the wider impact of the CJEU’s judgment in Unilever Italia and its implications in shaping the European Commission’s agenda to reform Article 102 TFEU

Article


Marinova, M. 2024. Rethinking the ‘as efficient competitor’ test: assessing the wider impact of the CJEU’s judgment in Unilever Italia and its implications in shaping the European Commission’s agenda to reform Article 102 TFEU. Competition Law Journal. 23 (1), p. 1–17. https://doi.org/10.4337/clj.2024.01.01
AuthorsMarinova, M.
Abstract

Recently, the European Commission published a communication indicating amendments to its Article 102 TFEU Guidance Paper in light of the latest EU Courts’ judgments on exclusionary abuses. In the Amended Guidance and the accompanying Policy Brief, the Commission provides some guidance related to changes in four main areas: the definition of anti-competitive foreclosure, the ‘as efficient competitor’ test, the assessment of loyalty rebates, and the treatment of refusals to supply and margin squeezes. The analysis in this article reflects on the evolution of the application of the ‘as efficient competitor’ test, focused on the most recent CJEU judgment in Unilever Italia. The article discusses the extent to which competition authorities must examine economic evidence submitted by the dominant company, and whether such evidence can be refuted without in-depth analysis. The article concludes that further clarification is imperative regarding outstanding ambiguities surrounding the appropriate role and use of the as efficient competitor price-cost test in assessing potentially abusive conduct under Article 102 TFEU.

JournalCompetition Law Journal
Journal citation23 (1), p. 1–17
ISSN1476-9085
Year2024
PublisherEdward Elgar Publishing
Accepted author manuscript
License
File Access Level
Anyone
Digital Object Identifier (DOI)https://doi.org/10.4337/clj.2024.01.01
Publication dates
Online06 Sep 2024
Publication process dates
Accepted28 May 2024
Deposited13 Nov 2024
Copyright holder© 2024 The Author.
Additional information

The definitive, peer reviewed and edited version of this article is published in Competition Law Journal, 23 (1), pp.1–17, 2024.

Permalink -

https://repository.uel.ac.uk/item/8y790

Restricted files

Accepted author manuscript

  • 27
    total views
  • 1
    total downloads
  • 12
    views this month
  • 0
    downloads this month

Export as

Related outputs

The UK’s digital market regulation: the need for a proportionality principle in the CMA’s new framework
Marinova, M. 2024. The UK’s digital market regulation: the need for a proportionality principle in the CMA’s new framework. Journal of European Competition Law & Practice. p. In Press. https://doi.org/10.1093/jeclap/lpae062
Navigating the Crossroads: The Future of Efficient Competitor Test in EU Competition Law
Marinova, M. 2024. Navigating the Crossroads: The Future of Efficient Competitor Test in EU Competition Law. ThoughtLeaders4 Competition Magazine. 5, pp. 40-41.
Rethinking the legal test for excessive pricing: Insights from the Landmark UK CMA v Pfizer/Flynn Case and Its Legal Implications
Marinova, M. 2024. Rethinking the legal test for excessive pricing: Insights from the Landmark UK CMA v Pfizer/Flynn Case and Its Legal Implications. Journal of Antitrust Enforcement. p. In Press. https://doi.org/10.1093/jaenfo/jnae033
Unmasking Excessive Pricing: Evolution of EU Law on Excessive Pricing from United Brands to Aspen
Marinova, M. 2024. Unmasking Excessive Pricing: Evolution of EU Law on Excessive Pricing from United Brands to Aspen. European Competition Journal. 20 (2), pp. 315-339. https://doi.org/10.1080/17441056.2023.2280329
Evolution of the legal test on excessive pricing in the UK
Marinova, M. 2023. Evolution of the legal test on excessive pricing in the UK. ThoughtLeaders4 Competition Magazine. 3, pp. 58-59.
Should the rejection of the “as efficient competitor” test in the Intel and Post Danmark II judgements lead to dismissal of the effect-based approach?
Marinova, M. 2016. Should the rejection of the “as efficient competitor” test in the Intel and Post Danmark II judgements lead to dismissal of the effect-based approach? European Competition Journal. 12 (2-3), pp. 387-408. https://doi.org/10.1080/17441056.2017.1289706