Where Do We Stand on Discounts Under the Competition Law Prohibition on Abuse of Dominance? Norwegian Perspective and Experience an Effects-Based Approach to Legitimate Conduct?

Abstract

The article considers how the Norwegian Competition Authority and Norwegian courts have distinguished abusive discounts from legitimate price competition. Norwegian law contains two prohibitions on abuse of dominance: Section 11 of the Norwegian Competition Act and Article 54 of the European Economic Area Agreement. The prohibitions correspond to and shall in principle be interpreted in line with Article 102 of the Treaty on the Functioning of the European Union. Even though the Norwegian Competition Authority has conducted and endorsed relatively extensive analyses of competitive effects when distinguishing abusive from legitimate price competition, the authority’s decisions in abuse of dominance have either been repealed or annulled by the courts. A potential explanation for the authority’s unsuccessful enforcement efforts is that the dominant undertakings’ conduct was rather competition based on merits or performance than on potentially abusive market methods. In light of the Court of Justice of the European Union’s case law on abuse of dominance, the article discusses whether the Norwegian experience with discounts and pricing practices can be described as an effects-based approach to legitimate conduct.