Exclusionary rebates: where are we after Post Danmark II and how did we get there?

Abstract

Unilateral conduct of dominant firms is a highly controversial area of competition law in legal systems all around the world. This is especially true in respect of rebate schemes, a business practice that is in widespread use, but whose legal and economic evaluation causes numerous problems.

Recently, the Court of Justice delivered its judgment in the Post Danmark II case, in which it focused on the legal assessment of standardised rebates, including the role of the as-efficient-competitor test and the de minimis threshold. Unfortunately, in many aspects the judgment is confusing.

Some parts of it, such as the one concerning the as-efficient-competitor test, seem to take the law into a new dimension; other parts, however, indicate that we are still stuck in the same orthodox approach. The future developments of the law may now depend on the actions of EU competition law enforcers at the national level.

Sweet and Maxwell: European Law Review http://www.sweetandmaxwell.co.uk/catalogue/productdetails.aspx?recordid=427&productid=6968

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