Dominant firms and selective discounting in the EU: When is “meeting competition” a defence?

Abstract:

When can a (potentially) dominant firm rely on the “meeting competition defence” to prevent a selective discount falling foul of Article 102(b) or (c) TFEU? And does the firm need to worry about whether its discount discriminates between clients, or is the Commission only really interested in exclusion? These are critical questions for any dominant firm in today's economic climate.

Existing case law is however confusing and there is a lack of official Commission guidance. This gives rise to real practical problems and, it is submitted, has more than just the potential to chill competition. This article explores the issues and tries to provide answers. It ends with a plea to the EU Courts and Commission to make clear their reasoning when handling cases in this area, and suggests that jurisprudence and doctrine are now sufficiently mature for the Commission to start work on enforcement guidance.