Excessive Pricing and the Prohibition of the Abuse of a Dominant Position

Abstract

This article contributes to the European debate on exploitative pricing abuses by dominant undertakings. Although it is questionable whether competition policy should interfere with such market behaviour, case law shows that Article 82 EC applies, in principle, to exploitative pricing abuses by dominant undertakings. The legal test for excessive pricing needs further clarification and simplification, although the test must remain sufficiently flexible for application on a case-by-case basis. The author discusses a range of factors to be taken into account when assessing the pricing policies of dominant undertakings and proposes extending the test beyond the cost-price analysis and to take into account other economic and behavioural considerations. The author further suggests that exploitative pricing abuses may arise not only under conditions of monopoly, where a single dominant company abuses its market power but also in markets jointly dominated by several actors (oligopoly). Exploitative pricing abuses under conditions of oligopoly may thus be tackled through the application of Article 82.