Abuse of Dominance: Exclusionary Pricing Abuses

I Lianos and D Geradin, Handbook on European Competition Law: Substantive Aspects (Edward Elgar, 2013)

Posted: 16 Feb 2014

See all articles by Alison Jones

Alison Jones

King's College London – The Dickson Poon School of Law

Liza Lovdahl Gormsen

British Institute of International and Comparative Law

Date Written: January 1, 2013

Abstract

This chapter examines the way that EU competition law applies to exclusionary pricing abuses, focusing on predatory pricing, selective low pricing, margin squeeze, rebates and other forms of price discrimination. It considers whether the evolution in the jurisprudence reflects a less formalistic approach to Article 102 and a trend towards a more economic one, based on a consumer welfare objective. The Chapter concludes that in seeking to identify unlawful exclusionary behaviour, the judgments of the EU Courts seem, to date, to prefer a construction of Article 102 that will ensure that the process of competition and rivalry between firms is preserved and protected. The anti-competitive effects of a dominant firm’s conduct thus tend to be assumed where that conduct is capable of excluding equally efficient competitors or is liable to remove or restrict a buyer’s freedom to choose its sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties or to strengthen the dominant position by distorting competition. Critics complain that the EU rules in this area may, in consequence, be over-inclusive and may unduly deter pro-competitive low cost pricing by dominant firms. Although the Commission, in its Guidance Paper and more recent decisions, has sought to meet this criticism, promising to focus more closely on the question of whether a pricing practice will exclude equally efficient competitors and cause consumer harm, it is too early to determine to what extent this new policy will result in a concomitant evolution in the jurisprudence of the Court of Justice.

Keywords: Article 102, abuse, exclusionary pricing practices, price discrimination

Suggested Citation

Jones, Alison and Lovdahl Gormsen, Liza, Abuse of Dominance: Exclusionary Pricing Abuses (January 1, 2013). I Lianos and D Geradin, Handbook on European Competition Law: Substantive Aspects (Edward Elgar, 2013). Available at SSRN: https://ssrn.com/abstract=2395165

Alison Jones (Contact Author)

King's College London – The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

Liza Lovdahl Gormsen

British Institute of International and Comparative Law ( email )

Charles Clore House
17 Russell Square
London, WC1B 5JP
United Kingdom

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