Recalibrating Competition Law: Beyond the As-Efficient Competitor Test

While the use of means that have exclusionary effects is prohibited, competition may also come from undertakings that are less efficient than the dominant firm, especially in markets where the emergence of as-efficient competitors may not be possible due to the structure of the market. Recent case law has shown that the EU courts are open to upholding findings not exclusively based on quantitative analyses and the 'as-efficient-competitor' (AEC) test. Other parameters of competition, such as 'choice', 'quality', or 'innovation', are also important. The General Court stresses the importance of 'choice' and the needs of consumers in having more than one source for obtaining information on the internet. The AEC test can only reflect quantitative and not qualitative parameters, and its application must comply with very demanding standards, which may make it virtually impossible for the Commission to rely on the test to assess the capability to foreclose. The introduction of qualitative elements allows the decision-maker to take into account other considerations, including the degree to which competitive pressure is reduced by less efficient competitors.