Should the rejection of the “as efficient competitor” test in the Intel and Post Danmark II judgements lead to dismissal of the effect-based approach?

Abstract

Recently the General Court’s judgement in Intel and the Court of Justice’s judgement in Post Danmark II rejected the need for an implementation of the “As-Efficient-Competitor test” (AEC test) in order to establish a violation of Art. 102 TFEU. The prevailing interpretation of the judgements is that the European Union (EU) Courts have followed the so-called form-based approach that no economic analysis is needed to establish a violation, which could be traced to Ordoliberalism. This article asks whether the Ordoliberal competition model can still serve as a basis for the European Commission and Court’s application of EU rules with regard to fidelity rebates. In providing an outline of the main perceptions of the Ordoliberal model and its recent interpretation, this article reveals that the interpretation of Art. 102 is clearly effect-based. It also clarifies that the rejection of the AEC test in both judgements does not mean the dismissal of the effect-based approach.