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

A Reformulation Doing Justice to An Effects-Based Approach

Georgia D. Theodorakopoulou

European Competition and Regulatory Law Review, Volume 7 (2023), Issue 3, Page 154 - 165

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.


Intel Renvoi: The General Court Sets a Course to Steer the EU Through Troubled Waters journal article

Martin Toskov

European Competition and Regulatory Law Review, Volume 7 (2023), Issue 2, Page 125 - 128

Case T-286/09 RENV Intel Corporation v Commission, Judgment of the General Court (Fourth Chamber, Extended Composition) of 26 January 2022 Just over a year ago, the General Court (GC) handed down its second judgment of the Intel saga. The judgment largely follows the Court of Justice of the European Union’s (CJEU) findings from 2017.1 The case centres around the conditional rebates Intel used in its dealings with trading partners. Specifically, the place of the as-efficient-competitor (AEC) test in non-price-based abuses of dominance under Article 102(c) TFEU2 and the role of effects-based analyses in fidelity rebates. The new, more effects-based approach adopted by the GC is both welcome and necessary. It ensures that EU competition law encourages, rather than dampens, entrepreneurship and is thus a tool fit to guide the EU through the current economic difficulties.

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