Google Shopping and the As-Efficient-Competitor Test: Taking Stock and Looking AheadClick here to read the full article online
The article aims to provide a more nuanced account of the AEC principle and its interrelationship with the AEC test as well as an account of the ‘status quo’ regarding the relevance and appropriateness of the AEC test in price-based exclusionary conduct. It argues that the ‘as-efficient-competitor’ principle and the ‘as-efficient-competitor’ test should not be conflated, as this can generate a very narrow perspective on the goals EU competition law does and should promote. Although the ‘as-efficient-competitor’ principle remains a fundamental aspect in Article 102 TFEU, it shows that the relevance and application of the ‘as-efficient-competitor’ test in price-based exclusionary conduct has diminished over the years. It then argues that the General Court in Google Shopping embraces a categorical distinction between price and non-price based exclusionary conduct and reserves any application of the ‘as-efficient-competitor’ test to the former category only. This raises a number of questions on the merits of this classification that are explored in detail. The article identifies three possible scenarios: (i) retaining the ‘status quo’ regarding the application of the AEC test for certain price-based exclusionary conduct; (ii) abandoning the AEC test for most of price-based exclusionary conduct; and (iii) introducing the AEC test for certain non-price exclusionary conduct, such as self-preferencing. It focuses in particular on the third scenario, as it presents an ‘outside the box’ perspective on the assessment of non-price based exclusionary conduct. The final section explores the proposed test, its prospects and limitations, in greater detail and argues that there might be scope to introduce an ‘as-efficient-competitor’ test as one of the tools for assessing effects in ‘self-preferencing’ cases.