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A discriminatory abuse occurs when a dominant firm is able to discriminate against its rivals (primary line injury) and when it discriminates between its costumers (secondary line injury).[1] Discrimination Discrimination is implicated in most abuses[2]abuses
II. Types of discriminatory abuses
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Abusive discrimination arises when a firm in dominant position applies “dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage”[3]
. It may refer to price, geographic territory or nationality.
Price discrimination occurs where different costumers are charged different prices for the same product[4] “and product“and also where identical prices are charged in circumstances in which a difference in the cost of supplying them would justify their differentiation”[5].
Geographic price discrimination entails charging different prices for the same commodities in different geographical territories[6].
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As has been seen, discrimination can arise in many cases under Article 102 TFEU, given the confusion that has been created by practice and case law.[21]
[1] A.Jones and B.Sufrin, EU Competition Law, 5th edition,2013, Oxford, p.397-398
[2] R.O’Donoghue and J.Padilla, The Law and Economics of Article 102 TFEU, 2nd edition, 2013, Oxford and Portland, Oregon, p. 245
[3] Art 102 (c) TFEU
[4] A.Jones and B.Sufrin, EU Competition Law, 5th edition,2013, Oxford, p.396
[5] R. Whish and D. Bailey, Competition Law, 8th edition, 2015, Oxford, p. 802
[6] A.Jones and B.Sufrin, EU Competition Law, 5th edition,2013, Oxford, p.570
[7] R.O’Donoghue and J.Padilla, The Law and Economics of Article 102 TFEU, 2nd edition, 2013, Oxford and Portland, Oregon, p. 815-816
[8] A. Jones and B. Sufrin, EU Competition Law, 5th edition, 2013, Oxford, p. 401-402
[9]R.O’Donoghue and J.Padilla,The Law and Economics of Article 102 TFEU, 2nd edition, 2013, Oxford and Portland, Oregon, p.245-246
[10]R. Whish and D. Bailey, Competition Law,8th edition, 2015, p. 789-780. See also Irish Sugar v. Commission, Case T-228/97, 1999, ECR II-2969, para 112
[11]A.Jones and B.Sufrin, EU Competition Law, 5th edition, 2013, Oxford, p.426
[12]R.O’Donoghue and J.Padilla, The Law and Economics of Article 102 TFEU, 2nd edition, 2013, Oxford and Portland, Oregon, p.246
[13]See Loyalty and Fidelity Discounts and Rebates, OECD Report of 4 Febr.2003, p.7
[14]Case 85/76, Hoffman-La Roche v. Commission [1979] ECR 461, para 90
[15]A.Jones and B.Sufrin, EU Competition Law, 5th edition,2013, Oxford, p. 510
[16]R.O’Donoghue and J.Padilla, The Law and Economics of Article 102 TFEU, 2nd edition, 2013, Oxford and Portland, Oregon, p.248
[17]Case 27/76, United Brands v Commission, [1978] ECR 207, 14 February 1978, para 183
[18]R.O’Donoghue and J.Padilla, The Law and Economics of Article 102 TFEU, 2nd edition, 2013, Oxford and Portland, Oregon, p.596
[19]Communication from the Commission — Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, (2009/C 45/02), para 49
[20] R.O’Donoghue and J.Padilla, The Law and Economics of Article 102 TFEU, 2nd edition, 2013, Oxford and Portland, Oregon, p.246, A.Jones and B.Sufrin, p.EU Competition Law, 5th edition,2013, Oxford, p. 487
[21]R.O’Donoghue and J.Padilla,The Law and Economics of Article 102 TFEU, 2nd edition, 2013, Oxford and Portland, Oregon p.246
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