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From the As-Efficient Competitor to the Potentially As Efficient Competitor?

A Reformulation Doing Justice to An Effects-Based Approach

Georgia D. Theodorakopoulou

DOI https://doi.org/10.21552/core/2023/3/5

Keywords: Intel, as-efficient-competitor test, non-price-based abuse of dominance, Article 102(c)

Abstract: The AEC principle could be conceived as the other side of a competition policy serving to protect competition on the merits. The principle is of primal significance to Article 102 TFEU, which the CJEU has long interpreted as applying not only to the exploitation of market power vis-à-vis customers and suppliers, but also to conduct having as its object or effect the exclusion of actual or potential competitors. The exit from the market of less efficient competitors seems to be in sync with long standing policies. However, a more nuanced interpretation of the AEC principle providing for the protection of potential and not yet as-efficient competitors would reinforce competition on the merits.


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