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Part III Tests of Abuse, 7 The As Efficient Competitor Test

From: The Foundations of European Union Competition Law: The Objective and Principles of Article 102

Renato Nazzini

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 22 June 2021

Article 102 TFEU — Significantly impede effective competition test

This chapter looks at the as efficient competitor test. Under the as efficient competitor test, conduct is prima facie abusive if it is capable of excluding a competitor that is at least as efficient as the dominant undertaking. This test has received strong judicial endorsement in predatory pricing and margin squeeze but not in other pricing abuses, particularly rebates. The as efficient competitor test can be applied dynamically. This means that a practice can be exclusionary when it forecloses competitors that could become as efficient as the dominant undertaking within a reasonable period of time but are prevented from doing so by the allegedly abusive conduct. When this test applies, however, the only approach which is consistent with the purpose of Article 102 is to require proof of actual effects. The as efficient competitor test also applies to determine whether discrimination that is neither exclusionary nor exploitative is abusive under Article 102(c).

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