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CJEU Judgment in Post Danmark II: Role of Economic Evidence in Competition Cases

András Tóth

On 6th October 2015, the Court of Justice of the European Union (‘CJEU’) delivered in Case C-23/14 Post Danmark A/S v Konkurrenceråd the first preliminary ruling related to the interpretation of Article 82 EC (now Article 102 TFEU) on rebate scheme applied by an undertaking enjoying dominant position. The most important issue raised by the case and referred to the CJEU concerns the role of the economic evidences in the competition cases. The CJEU did not indeed share AG Kokott’s scepticism about the role of the economic evidences in the competition cases and maintained its general approach on the relevance of the ‘as-efficient competitor’ (‘AEC’) test in competition cases. Accordingly, the AEC test can be applied unless the structure of the market makes the emergence of an as-efficient competitor practically impossible. The CJEU re-confirmed the ‘safe harbour’ for volume rebates contrary to the proposals of the Advocate-General. The CJEU – in consistency with the General Court’s position in its Intel judgement – recalled that all relevant circumstances should be considered when determining whether a company has abused its dominant position by applying the third type of rebate, i.e. when grant of a financial incentive is not directly linked to a condition of exclusive or quasi-exclusive supply but where the mechanism for granting the rebate may also have a fidelity-building effect.

Vice-president of the Hungarian Competition Authority and the Chairman of the Competition Council, Associate Professor and Head of the ICT Law Department at University of Károli in Budapest, Member of the Editorial Board.


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