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supra-competitive prices that result from a decrease in competition) or the case of a diversified company financing its losses through its efficiency and/or profit-maximizing behavior in other markets?

16. Does the assertion in paragraph 123 that Domco can “rebut” the Commission’s case of predatory conduct by showing that recoupment will never be possible indicate that the Commission is relieved of the burden to show a likelihood of recoupment or is it merely a presumption the Commission may establish that can be then rebutted by Domco. If the latter, how can the Commission establish this presumption?

  • 17.

    Should the Commission be allowed to operate by imposing presumptions?

  • 18.

    Does it make sense to conclude that profit realizing pricing is predatory when it is

below the ATC of a competitor? Does this imply a duty exists on Domco to assist its competitor to establish the necessary scale, for example, needed to compete with Domco when Domco’s scale advantages presumptively came at great cost to it?

19. In markets where brand loyalty is an important feature is it “predatory” to meet the price of a new entrant even where that pricing is below AAC?

20. Might “English Clauses” be evaluated as facilitating practices in furtherance of tacit collusion under Art. 81?

  • 21.

    What’s the difference between tying and bundling?

  • 22.

    In what way might conditional rebates on all purchases be potentially more harmful

to competition than conditional rebates on incremental purchases above the threshold?

23.

If two products are evaluated as distinct from one another

bundling

analysis,

how

can

they

also

be

considered

part

of

the

some

under a tying or product market?

24. Is treatment of margin squeeze in the DP point 220 and Guidance Paper point 79 similar? If not, what is the difference, which view do you prefer and why? Why did the Commission change its mind after dealing with several cases involving firms with exclusive rights granted by national governments? Should the treatment of margin squeeze be stricter when Domco is privileged by law?

25. In paragraph 223 (and similarly in para.232), the DP notes that a refusal to supply a down-stream purchaser may have a “special effect” on competition if that competitor

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