Where Do We Stand on Discounts after Intel?

Abstract

The dominant undertaking’s ability to award discounts and other loyalty inducing considerations are subject to much ambiguity and unsettled issues. Despite discounts being a commercial requirement, even for the dominant undertaking, it’s difficult to draw up clear principles, and while the approach to non-dominant undertaking’s restriction of competition has been fundamentally recast over the last 20 years, the appraisal of single company behaviour remains more formal and rigid. However, there have recently been indications that some of the same leniency might have been extended to discounts and unilateral behaviour. Consequently, an attempt shall be made to provide some guidelines under EU and Danish practice. Danish companies would normally be governed by both and the later has been aligned to the former, thus providing general guidance on EU practice. Moreover, the recent Intel will be incorporated with due respect to the different possible reading of the Court of Justices ruling.