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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). Discrimination is implicated in most abuses abuses.
II. Types of discriminatory abuses
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”
. It may refer to price, geographic territory or nationality.
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Geographic price discrimination entails charging different prices for the same commodities in different geographical territories[6].
Residence discrimination covers different charges for the same commodity depending on whether the recipient is situated within the national territory or other than it[7].
Predatory pricing may be defined as the practice whereby a firm sets its prices at a sufficiently low level with the purpose of eliminating a competitor or preventing the entry of a new one into the market[8]. Predatory pricing usually involves discrimination by a dominant firm between its existing customers and actual or potential customers of rival firms[9]. This may happen where a dominant firm cuts its prices selectively to costumers that might defect to a rival, whereas leaves higher prices to others costumers[10].
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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]
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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