The role of the ‘as efficient competitor’ test after the CJEU judgement in Intel

The presumption of illegality of fidelity rebates has long been a controversial topic in Europe, and has been heavily criticised for being similar to a'perse', form-based approach to Art. 102 TFEU enforcement. The Intel case has been seen as a first testing ground whether a more effects-based approach on Art. 102 TFEU would be supported by the courts. However, the Intel decision of the Commission, which predated the adoption of the Guidance Paper on Art. 102 TFEU, 1 appears as a hybrid between traditional analysis of loyalty rebates and an effects analysis based on a price-cost test. 2 While the General Court (GC) judgment on Intel upheldthe Commission decision it explicitly rejected the need for effects analysis-specifically the price-cost test., The judgment had little to say about the As Efficient Competitor (AEC) test that the Guidance Paper mentions explicitly, but nevertheless was seen by many as signalling the demise of the Guidance Paper and its effects-based approach. It reignited an intense and controversial discussion between academics, practitioners and commentators on the relevance of an effects-based approach in abuse of dominance cases.

This is a draft chapter/article. The final version is available in Competition Law & Policy Debate, published in 2018, Edward Elgar Publishing Ltd
http://dx.doi.org/10.4337/clpd.2018.02.07

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