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?

Article


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
AuthorsMarinova, M.
Abstract

Recently the General Court’s judgement in Intel and the Court of Justice’s judgement in Post Danmark II rejected the need for an implementation of the “As-Efficient-Competitor test” (AEC test) in order to establish a violation of Art. 102 TFEU. The prevailing interpretation of the judgements is that the European Union (EU) Courts have followed the so-called form-based approach that no economic analysis is needed to establish a violation, which could be traced to Ordoliberalism. This article asks whether the Ordoliberal competition model can still serve as a basis for the European Commission and Court’s application of EU rules with regard to fidelity rebates. In providing an outline of the main perceptions of the Ordoliberal model and its recent interpretation, this article reveals that the interpretation of Art. 102 is clearly effect-based. It also clarifies that the rejection of the AEC test in both judgements does not mean the dismissal of the effect-based approach.

JournalEuropean Competition Journal
Journal citation12 (2-3), pp. 387-408
ISSN1744-1056
Year2016
PublisherTaylor & Francis
Digital Object Identifier (DOI)https://doi.org/10.1080/17441056.2017.1289706
Publication dates
Online17 Feb 2017
Publication process dates
Accepted30 Jan 2017
Deposited13 Nov 2024
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