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The As-Efficient Competitor Test: Some Practical Considerations Following the ECJ Intel Judgment

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The ECJ Intel judgment provides a strong endorsement for both an effects based analysis and the as-efficient competitor principle for the application of article 102 TFEU. It is particularly remarkable that the Court made very broad statements in this regard, making it clear that article 102 TFEU is not meant to protect less efficient competitors. As explained in the judgment, competition on the merits may, by definition, lead to the departure of less efficient competitors from the market, and article 102 TFEU’s purpose is not “to ensure that competitors less efficient than the undertaking with the dominant position should remain on the market”. Intel is by all means a far-reaching judgment on important principles.