‘To abuse, or not to abuse: discrimination between consumers’ (2007) 32 European Law Review 492. Dr. Pinar Akman The Norwich Law School and ESRC Centre for Competition Policy [email protected] Identifying the problem.
Dr. Pinar Akman
The Norwich Law School and ESRC Centre for Competition Policy
While writing the previous chapter of my PhD on ‘unfair pricing’ I ended up reading about price discrimination. Then it occurred to me that…
Can discrimination between consumers be an abuse under Article 82EC? (Question 1)
should discrimination between consumers be an abuse under Article 82EC given the economics of price discrimination? (Question 2)
- List not exhaustive.
- EC Commission/Courts have not looked for ‘competitive disadvantage’ which is supposedly what excludes consumers from scope.
- Literal reading of Article 82EC: ‘trading parties’ understood as ‘traders’; competitive disadvantage requirement, etc.
- ‘Trading parties’ can be anyone that enters into trade with the dominant undertaking, including consumers.
- ‘Competitive disadvantage’ has almost been read out in practice.
Economics shows that in some cases consumers’ demands can also be interdependent.
- Non-exhaustive list;
Question 1 answered in the affirmative.
- narrow enough to be tackled in a clear and concise way;
- timely – reform of Article 82; economic approach; private enforcement;
- appealing to a wider audience – hence the generalist journal;
- quite simple, basic and obvious, but no one had tackled it before in the literature.