The rebates, which consist in granting a lump sum discount to the ...

More documents

Recommendations

Info

modest variations – whether upwards or downwards – in the turnover figures relating to theproducts of the dominant undertaking have disproportionate effects on co-contractors 8the pressure exerted on resellers by an undertaking in a dominant position which grantedbonuses with those characteristics is further strengthened where that undertaking holds avery much larger market share than its competitors 9 . By reason of its significantly highermarket share, the undertaking in a dominant position generally constitutes an unavoidablebusiness partner in the market. Most often, discounts or bonuses granted by such anundertaking on the basis of overall turnover largely take precedence in absolute terms, evenover more generous offers of its competitors. In order to attract the co-contractors of theundertaking in a dominant position, or to receive a sufficient volume of orders from them,those competitors would have to offer them significantly higher rates of discount or bonus.The above criteria was followed by the European Court of Justice in the judgment Virgin/BritishAirways Judgment 10 . In this decision Court of First Instance, after holding that the bonus schemesat issue produced an exclusionary effect, had to examine whether those schemes had an objectiveeconomic justification, stating that Assessment of the economic justification for a system ofdiscounts or bonuses established by an undertaking in a dominant position is to be made on thebasis of the whole of the circumstances of the case (see, to that effect, Michelin, paragraph 73). Ithas to be determined whether the exclusionary effect arising from such a system, which isdisadvantageous for competition, may be counterbalanced, or outweighed, by advantages in termsof efficiency which also benefit the consumer. If the exclusionary effect of that system bears norelation to advantages for the market and consumers, or if it goes beyond what is necessary in orderto attain those advantages, that system must be regarded as an abuse.The same approach was followed by the Court of justice in the appeal sentence stated that,according to the previous case law discounts or bonuses granted to its co-contractors by anundertaking in a dominant position are not necessarily an abuse and therefore prohibited byArticle 82 EC. Only discounts or bonuses which are not based on any economic counterpart tojustify them must be regarded as an abuse.4. The treatment of rebates scheme in Guidance Paper on art 82On 9 February 2009 the European Commission published the final version of its Guidance Paper onthe application of Article 82 EC Treaty to exclusionary abuses of a dominant position. The8 see, to that effect, Michelin, paragraph 819 see, to that effect, Michelin, paragraph 8210 See Commission Decision 2000/746
Guidance Paper is the result of a review process launched by the Commission staff’s Article 82Discussion Paper in December 2005 and included subsequent comprehensive public consultationsand discussions with Member States’ Competition Authorities.As stated in the accompanying FAQ memo, the Guidance Paper “is intended to contribute to theprocess of introducing a more economics based approach in European competition lawenforcement” and, as such, embodies a very welcome departure from the past Commission’sapproach to interpreting Article 82 EC, which has been often criticized as exceedingly formalistic.The rebates notionThe Discussion Paper distinguishes between:conditional discounts: are granted to customers to reward a certain (purchasing) behaviourof these customers (e.g., meeting a sales threshold)unconditional discounts: are granted for every purchase of these particular customers,independently of their purchasing behaviourThe Discussion Paper recognizes that both types of discounts may be used for efficiency reasons orfor anticompetitive motives, and both may have precompetitive and anticompetitive effects.Regarding unconditional discounts, the Discussion Paper proposes to apply the usual rules onpredatory pricing.Concerning the treatment of conditional rebates, the Discussion Paper crucially distinguishesbetween conditional rebates granted on all purchases in the reference period (retroactive rebates)and conditional rebates on incremental purchases above a given threshold(incremental rebates).While both types of conditional rebates may cause exclusionary effects, the Discussion Paper takesthe view that the former “may foreclose the market significantly, as they may make it less attractivefor customers to switch small amounts of demand to an alternative supplier, if this would lead toloss of the retroactive rebates.The rebates evaluationThe Guidance Paper specifies clearly that “the Commission will normally only intervene where theconduct concerned has already been or is capable of hampering competition from competitorswhich are considered to be as efficient as the dominant undertaking 11 ” also if it is recognized that“the Commission recognizes that in certain circumstances a less efficient competitor may also exert11 Cfr para 23 Commission Guidance Paper on art 827
Page 1 and 2: LUISS GUIDO CARLIDOTTORATO DI RICER
Page 5: a form-based approach 4 . In partic
Page 10 and 11: In the following section are analyz
Page 12: The rebate schemes were individuali
Page 15 and 16: The analysis takes into considerati
Page 17 and 18: documents or data that the dominant
Page 19 and 20: which apply only to some type of cu
Page 21 and 22: to capture. Then it compares these
Page 23 and 24: References:DG Competition, DG Compe
Page 25 and 26: Secondo quanto stabilito dalla giur
Page 27 and 28: L’autonomia di fattispecie abusiv
Page 29 and 30: Difatti DT era soggetta a specifici
Page 31 and 32: L’applicazione dei criteri sopra
Page 33 and 34: 1.3 La sentenza TeliaSonera: un sal
Page 35 and 36: A parere dunque dell’avvocato gen
Page 37 and 38: Le pronunce comunitarie hanno accre
Page 39 and 40: profitmargins 30 ”. Medesime conc
Page 41 and 42: BIBLIOGRAFIACase C-52/09, Konkurren
Page 44 and 45: REGULATORY IMPACT ASSESSMENT INTELE
Page 46 and 47: IntroductionRegulatory Impact Asses
Page 48 and 49: technical nature of RIA tool was pr
Page 50 and 51: correct evaluation of the costs and
Page 52 and 53: counter political development that
Page 54 and 55: each "major rule" pending, subject
Page 56 and 57:
compelling public need; the first s
Page 58 and 59:
the effort of the other department
Page 60 and 61:
3. The Development of RIA: the Euro
Page 62 and 63:
Commission initiatives included in
Page 64 and 65:
But there is another aspect of the
Page 66 and 67:
SECTION BAn Empirical Analysis of T
Page 68 and 69:
With the adoption of New Regulatory
Page 70 and 71:
The Commission evaluates the impact
Page 72 and 73:
The document of Commission gives ve
Page 74 and 75:
following are summarized the main p
Page 76 and 77:
The electronic communications secto
Page 78 and 79:
In order to reach this objective th
Page 80 and 81:
2) this would have a positive impac
Page 82 and 83:
Economicoperators' costsand benefit
Page 84 and 85:
costs and benefits related to the e
Page 86 and 87:
3. Third Case Study - The Commissio
Page 88 and 89:
According to the ERG Common Positio
Page 90 and 91:
architecture implemented by an SMP
Page 92 and 93:
same time Ofcom believes that this
Page 94 and 95:
In order to understand how the RIA
Page 96 and 97:
What is possible learned from the a
Page 98 and 99:
- European Commission, Draft Recomm
show all

The rebates, which consist in granting a lump sum discount to the ...

Create successful ePaper yourself

Delete template?

Save as template?