Exclusivity Agreements and the Role of the As-Efficient-Competitor Test After Intel†

Abstract

This article deals with whether the so called ‘as-efficient-competitor’ test (‘the AEC test’) can be used, in particular after the Court of Justice of the European Union’s (‘CJEU’) judgment of 6 September 2017 in the Intel case1 (‘Intel’), to assess a dominant undertaking’s practice of exclusivity agreements,2 i.e. contracts concluded between a seller and a buyer whereby the latter commits not to make any purchases from any competing seller or to make purchases to a large extent only from the contracting undertaking. Intel triggered a debate on whether the Commission or a national competition authority (‘NCA’) are required to carry out a quantitative test to measure the capability of a dominant undertaking’s exclusivity rebates, exclusivity payments or even exclusivity agreements to foreclose competitors that are as efficient as the dominant undertaking. The post-Intel debate split the competition world essentially in two parts: (i) those who argue that the CJEU has finally made the Commission commit to a quantitative effects analysis3 and (ii) those who argue that nothing has really changed as Intel does not require the Commission or the NCA to carry out a quantitative test, e.g. the AEC test for exclusivity rebates or exclusivity payments,4 let alone in case of exclusivity agreements. Moreover, according to the latter view, the AEC test would be just one of the tools in the Commission’s or the NCA’s toolbox to use when assessing exclusionary practices and both quantitative and qualitative evidence can be used to show the undertaking’s capability to foreclose of a dominant undertaking’s practice.