| Abstract [eng] |
By analysing legal framework and case law this paper discusses the development of the AEC test in the US legal and economic doctrine in the works of academics from the University of Chicago and Harvard University. It concludes that the AEC test has been implemented into EU law and institutional practice from US doctrine, essentially a slightly modified variant of the test proposed by professor R. A. Posner of the Chicago School of Law, but with a lower burden of proof for the an infringement compared to the US. It is important to distinguish the AEC test from the AEC principle. The AEC test is understood as a set of calculations implementing the AEC principle. The AEC test should not be understood as an assessment of cost price test but more as a set of criteria for the overall analysis. It is considered that the AEC test would then be applicable to non-price as well as price abuse cases. The problems with the concept of the AEC test in relation to type I and type II errors are assessed. The analysis of the amendments to the EC‘s Guidance on the Enforcement Priorities and the CJEU‘s case law examines the scope of the application of the AEC test to price based and non-price-based exclusionary conduct. It concludes that the AEC test should be used more broadly in cases of price-based abuses, while in cases of non-price-based abuses it should be applied more broadly, with the results of the AEC test being tested in conjunction with other applicable tests. As for each form of abuse, the application of the AEC test and the problems that may arise are addressed. The proposals made by the EC for the drafting of the Guidance on the Enforcement Priorities are evaluated and is formulated a structured and unified set of proposals for the adoption of the EC Guidance and the national regulation. It is broken down into proposals for guidelines on the structure, the concept and the application of the AEC test in conjunction with the other tests. |
