Post Danmark II: Does this signal the end of the ‘as efficient competitor’ test?

The ECJ has recently confirmed in its Post Danmark II preliminary ruling that the application of the as ‘efficient competitor’ test (AEC) to determine whether or not particular behaviours would drive an as-efficient-competitor out of the market is not a necessary pre-condition to finding that a rebate is anti-competitive and therefore illegal.

14th October 2015

The ECJ has recently confirmed in its Post Danmark II preliminary ruling that the application of the as ‘efficient competitor’ test (AEC) to determine whether or not particular behaviours would drive an as-efficient-competitor out of the market is not a necessary pre-condition to finding that a rebate is anti-competitive and therefore illegal. Whilst the ECJ’s judgement is restricted to rebates, the opinion of the Advocate General on this case provides fertile ground for lawyers looking to exclude the application of the AEC test in a far wider range of exclusionary price abuses.

Post Danmark II