The discussion on exclusivity rebates and the AEC test after the ECJ’s Intel judgement!
Legal comments on the Intel judgement were manifold and so were its interpretations. But the judgement also stimulated antitrust economists to revisit the AEC test and to reflect deeper on exclusive dealing generally. As of today, my take-away of the economists’ discussion is: The principle that Art. 102 does not seek to ensure that inefficient competitors remain in the market, is quite different from and should not be confounded with the AEC test. The test has clear merits for predatory pricing cases. For exclusivity rebate cases, however, it faces serious conceptual and implementation issues. The direct competitive effects go beyond low incremental prices of the dominant firm. The AEC test is not dispositive and contributes at best little to the effects analysis of exclusivity rebates.
Arno Rasek is the Bundeskartellamt’s Chief Economist.