Rebates and Article 102 TFEU: The European Commission's Duty to Apply the Guidance Paper

12 Pages Posted: 27 Nov 2015

See all articles by Nicolas Petit

Nicolas Petit

University of Liege - School of Law; Hoover Institution; University of South Australia - School of Law

Date Written: November 26, 2015

Abstract

This paper shows that the European Union (EU) courts' case-law and general principles of EU law place the European Commission (“Commission”) under a duty to apply the Guidance Communication on Enforcement Priorities (“Guidance Paper”) in abuse of dominance cases started after its adoption. This duty includes the obligation to test Article 102 TFEU cases under the As Efficient Competitor (“AEC”) framework, as set out in the 2009 Guidance Paper. The judgments handed down by the Union courts in Intel v Commission and Post Danmark II do not alter in any way the Commission’s “self binding” duty to apply the Guidance Paper. If the Commission wishes to depart from the AEC framework, it must officially withdraw its Guidance Paper.

Keywords: antitrust, competition, abuse of dominance, rebates, soft law, binding effects, as efficient test, pricing abuses

JEL Classification: K00, K20, K21, K40, K42, L40, L41

Suggested Citation

Petit, Nicolas, Rebates and Article 102 TFEU: The European Commission's Duty to Apply the Guidance Paper (November 26, 2015). Available at SSRN: https://ssrn.com/abstract=2695732 or http://dx.doi.org/10.2139/ssrn.2695732

Nicolas Petit (Contact Author)

University of Liege - School of Law ( email )

B-4000 Liege
Belgium

Hoover Institution ( email )

Stanford, CA 94305
United States

University of South Australia - School of Law ( email )

GPO Box 2471
Adelaide SA 5001
Australia

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