
Contents
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A. Introduction A. Introduction
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B. Predatory conduct B. Predatory conduct
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(1) Predation and exclusion of as efficient competitors (1) Predation and exclusion of as efficient competitors
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(2) The problem of the permissible cost benchmarks (2) The problem of the permissible cost benchmarks
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C. Margin squeeze C. Margin squeeze
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D. Conditional above-cost rebates D. Conditional above-cost rebates
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(1) Protection of less efficient undertakings incompatible with Article 102 (1) Protection of less efficient undertakings incompatible with Article 102
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(2) Static application of the as efficient competitor test (2) Static application of the as efficient competitor test
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(3) Dynamic application of the as efficient competitor test (3) Dynamic application of the as efficient competitor test
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E. Unconditional above-cost rebates E. Unconditional above-cost rebates
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F. Mixed bundling F. Mixed bundling
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G. Exclusivity G. Exclusivity
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H. Discrimination H. Discrimination
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(1) Article 102(c) as the exclusive legal basis (1) Article 102(c) as the exclusive legal basis
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(2) Criticism of the application of Article 102(c) to exclusionary conduct (2) Criticism of the application of Article 102(c) to exclusionary conduct
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(3) Market-distorting discrimination and competitive disadvantage (3) Market-distorting discrimination and competitive disadvantage
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I. Conclusion I. Conclusion
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7 The As Efficient Competitor Test
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Published:December 2011
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Abstract
This chapter is structured as follows. First, it examines the development of the as efficient competitor test in predation and, in particular, the cost benchmarks that are relevant to the application of the test. Next, it examines the extension of the test to margin squeeze, above-cost rebates, mixed bundling, and exclusivity. Then, it discusses discriminatory abuses as a further extension of the as efficient competitor test. In discrimination, the efficiency benchmark is not the dominant undertaking because the latter does not compete on the market where the anti-competitive effects occur. Rather, the efficiency benchmark is the undertakings benefiting from the discrimination. Discrimination is capable of affecting the ability to compete of firms that are as efficient as firms benefiting from the discrimination and are placed at a competitive disadvantage because of the dominant undertaking's conduct. Finally, conclusions are drawn.
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