Rethinking the ‘as efficient competitor’ test: assessing the wider impact of the CJEU’s judgment in Unilever Italia and its implications in shaping the European Commission’s agenda to reform Article 102 TFEU

Abstract

Recently, the European Commission published a communication indicating amendments to its Article 102 TFEU Guidance Paper in light of the latest EU Courts’ judgments on exclusionary abuses. In the Amended Guidance and the accompanying Policy Brief, the Commission provides some guidance related to changes in four main areas: the definition of anti-competitive foreclosure, the ‘as efficient competitor’ test, the assessment of loyalty rebates, and the treatment of refusals to supply and margin squeezes. The analysis in this article reflects on the evolution of the application of the ‘as efficient competitor’ test, focused on the most recent CJEU judgment in Unilever Italia. The article discusses the extent to which competition authorities must examine economic evidence submitted by the dominant company, and whether such evidence can be refuted without in-depth analysis. The article concludes that further clarification is imperative regarding outstanding ambiguities surrounding the appropriate role and use of the as efficient competitor price-cost test in assessing potentially abusive conduct under Article 102 TFEU.