Alexander Kolyachev[1]
It seems that in the last decade the European Commission found the important role of economic analysis in applying Article 102 of the EC Treaty to abusive exclusionary conduct by dominant undertakings. This is also the case in assessing the behaviour of a dominant firmdealing with rebate schemes. The degree of the analysis needed for the adoption of a decision finding an infringement, according to Commission’s view, should go one step further than before. The intention of a dominant firm to foreclose the market shouldn’t be enough a violation of the antitrust rules to be proved. Instead, by using some modern economic tools, a clear negative effect on the market must be shown. In other words, it seems that the Commission is not eager any more to treat some kinds of rebates as illegal per se, as it did in the past. There are clear indications of that approach which is based on Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings.
The author goes through two of the most disputable cases where the EU Commission dealt with rebate schemes, known as Tomracase[2]and the Intel case[3]. In both of them, the Commission used an effect based approach even though the Court position at that time was that there is no need of an effect based analysis. The analysis is concentrated on the economic approach in these cases. A brief explanation of the basic of the models used and the economic theory behind them is also.
The article is structured as follows: in the first part the economical principles behind rebates schemes are explained and some definitions of the different types of rebates are given (retroactive rebates, loyalty rebates, etc.). The second part gives an overview of the economic analysis made in the cases Tomra and Intel. The third part presents author`s view on the specifics of economic analysis in competition cases treating rebates schemes by competition watch dogs and judicial instances. It`s strongview is that the use of economic tools and tests in order to prove a potential or real antitrust effects on the relevant market should be an obligatory part of any investigation for abuse with dominance by applying a rebates scheme.
***
Link to the article in Bulgarian language: ИКОНОМИЧЕСКИЯ АНАЛИЗ НА „ЦЕЛЕВИТЕ ОТСТЪПКИ“ КАТО ЗЛОУПОТРЕБА С ГОСПОДСТВАЩО ПОЛОЖЕНИЕ СПОРЕД ПРАКТИКАТА ПО TOMRA И INTEL
***
[1] Economist, Chief expert at the Bulgarian Commission for Protection of Competition. Master from the Barcelona Graduate School of Economics on competition and regulated markets.
[2] The author analyses the decision of the Court of Justice of the European Union of 19 April 2012 on the case Tomra Systems and Others v Commission, C‑549/10 P, the judgement of the General Court of 9 September 2010 in Case T‑155/06 Tomra Systems and Others v Commission and the Commission Decision C (2006) 734 final of 29 March 2006 relating to proceedings under Article 82(now Article 102 TFEU) and Article 54 of the EEA Agreement (Case COMP/E.-1/38 — 113/Prokent‑Tomra).
[3]The author analyses the Opinion the Advocate General Wahl delivered on 20 October on the case, Intel v Commission, Case C‑413/14 P, the judgment of the General Court of 12 June 2014 and Decision C(2009) 3726 final of 13 May 2009 relating to a proceeding under Article 82 (now Article 102 TFEU) and Article 54 of the EEA Agreement (Case COMP/C‑3/37.990 — Intel).