CRESSE: Actual and Potential Effects

By James S. Venit –  

The Court of Justice’s Intel judgment, which rejects the application of per se condemnation of rebates granted by dominant firms when conditioned on exclusivity, and which implicitly endorses the use of the “As Efficient Competitor” test is a welcome step forward and a victory for those in DG Competition who have advocated the adoption of an effects-based approach under Article 102. However, the Court’s judgment is flawed to the extent that it focuses exclusively on potential effects in an ex-post case where the allegedly abusive conduct had come to an end so that actual affects could be determined.

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