p. 75318. Abuse of dominance (2): pricing practices
- Richard WhishRichard WhishEmeritus Professor of Law at King’s College London
- , and David BaileyDavid BaileyProfessor of Practice in Competition Law at King’s College London
Abstract
This chapter considers abusive pricing practices under Article 102 TFEU and the Chapter II prohibition in the Competition Act 1998. It first discusses various cost concepts used in determining whether a price is abusive. It then deals in turn with excessive pricing; conditional rebates; bundling; predatory pricing; margin squeeze; price discrimination; and practices that are harmful to the single market. This taxonomy is over-schematic, in that the categories overlap with one another: for example price discrimination may be both exploitative and exclusionary, and an excessively high price may in reality be a way of preventing parallel imports or of excluding a competitor from the market; nevertheless this division may provide helpful insights into the way in which the law is applied in practice. In each section the application of Article 102 by the European Commission and by the EU Courts will be considered first, followed by cases in the UK. Reference will be made where appropriate to the Commission’s Guidance on the Commission’s Enforcement Priorities in Applying Article [102 TFEU] to Abusive Exclusionary Conduct by Dominant Undertakings.
Keywords
- Article 102
- Abuse
- Guidance on Article 102 Enforcement Priorities
- Pricing practices
- Fixed costs
- Sunk costs
- Variable costs
- Marginal cost
- Average variable cost
- AVC
- Average avoidable cost
- AAC
- Average total cost
- ATC
- Long-run incremental cost
- LRIC
- Long-run average incremental cost
- LRAIC
- Standalone cost
- Excessive pricing
- Excessive price
- Unfair price
- Economic value
- Unfair in itself
- Unfair when compared to competing products
- Conditional rebates
- As-efficient competitor test
- Bundling
- Across-the-board rebates
- Delivered pricing
- Predatory pricing
- Rule in AKZO v Commission
- Intention
- Recoupment
- Defences
- Selective price cutting
- Margin squeeze
- Upstream market
- Downstream market
- Anti-competitive effects
- Price discrimination
- Article 102(2)(c) TFEU
- Equivalent transactions
- Dissimilar conditions
- Competitive disadvantage
- Pricing practices that are harmful to the single market
- Objective justification
