Moot IV

Question 1

What is the definition of price discrimination?

Answer 1

The sale or purchase of different units of a good or service at prices not directly corresponding to differences in the cost of supplying them.

Can be both an exclusionary abuse or an exploitative abuse.

Question 2

What is the legal basis?

Answer 2

Art. 102 (2) C TFEU.

Applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage.

Question 3

What issues must be addressed?

Answer 3

1) Does the accused have a dominant position?
2) Has the dominant undertaking entered into equivalent transactions with other trading parties?
3) Is the dominant undertaking guilty of applying dissimilar conditions to equivalent transactions?
4) Could the discrimination place other trading parties at a competitive disadvantage
5) Is there an objective justification?

Question 4

1) Does the accused have a dominant position?

Answer 4

The undertaking needs to have a dominant position in the upstream market.

Question 5

2) Has the dominant undertaking entered into equivalent transactions with other trading parties?

Answer 5

Factors to be considered in determining whether one transaction is equivalent with another include:

1) the nature of the product.
2) the cost of supply.

Question 6

3) Is the dominant undertaking guilty of applying dissimilar conditions to equivalent transactions?

Answer 6

To amount to an abuse of a dominant position the dominant firm must have applied dissimilar conditions.

Question 7

4) Could the discrimination place other trading parties at a competitive disadvantage

Answer 7

The wording of Art. 102(2) C requires that there is the infliction of ‘competitive disadvantage’.

• British Airways (2007): it is necessary to show that competition is distorted. It is sufficient that the behaviour tends to distort competition: there is no need to show an actual quantifiable deterioration in the competitive position of the business partners taken individually.
• MEO (2016) : the mere fact that one company had to pay more than another did not mean that competition is distorted. It is necessary to examine all the relevant circumstances of the case to establish a competitive disadvantage, such that the discriminatory price ‘has an effect on the costs, profits or any other relevant interest’ of a trading partner compared with its competitors.

Question 8

5) Is there an objective justification?

Answer 8

One could argue that discrimination is objectively justified or enhances efficiency.