While the Intel judgment might be a watershed moment for the ECJ’s interpretation of Article 102 TFEU, there may be risks that this development is countered by two trends: first, a concern by some competition agencies that a more aggressive approach is required to counter firms with exorbitant market power; second, a retreat to formalism by competition agencies who find the effects-based approach too problematic to implement. Moreover, for a proper integration of an effects-based approach, agencies focusing on prohibiting likely anticompetitive effects could develop improved approaches to the design of remedies and the measurement of fines.
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