Post Danmark II, now concluded by the ECJ: clarification of the rebate abuse, but how do we marry Post Danmark I with Post Danmark II?

Abstract:

In this article, the Post Danmark II judgment is discussed and analysed in the light of recent rulings by the Court of Justice (ECJ) and the General Court (together CJEU). The article quickly resolves that it is clear that the ECJ with Post Danmark II has, generally and rather stubbornly, kept the competition law doctrine for rebates unchanged and, more specifically, made it obvious that the ECJ does not support a general exclusive as-efficient-competitor test in the rebate abuse arena. However, the article continues and concludes that by clinging on to the competition law doctrine regarding rebate schemes, while making changes to the price discrimination test in Post Danmark I, the ECJ creates unease in the interface between pricing abuses, rebate abuses and discrimination, according to Article 102(c) TFEU. The unease can only be resolved by acknowledging that judged under different tests selective low pricing, selective targeted rebates as exclusionary abuses, and price discrimination under Article 102(c) TFEU should, according to ECJ, be treated rather differently, making it difficult for dominant firms to respond to new entrants.