How Well Does the European Legal Test for Predation Go with an Economic Approach to Article 102 TFEU?

Abstract

This article questions how well the legal test for predatory pricing, part of which relies on the subjective intent of dominant undertakings, goes with the Commission’s devotion to an economic approach in enforcing Article 102 Treaty on the Functioning of the European Union (TFEU). To answer that question, this article examines the rationale behind the legal test of predation and considers the presumptions laid down in AKZO. The focus will, in particular, be on the presumption of abuse where a dominant undertaking price is above average variable cost (AVC) but below average total cost (ATC) and where there is evidence of a plan to eliminate a competitor. It also considers whether the Commission uses intent as evidence in other areas than predation when enforcing Article 102 TFEU. A part of the legal test for predation is recoupment, so this article includes a discussion of the presumption of likely recoupment.