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EUROPEAN COMMISSION DG Competition - page 37 / 113

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initiative to eliminate products which it regards, rightly or wrongly, as dangerous or inferior to

its own product.61

      • 5.5.2

        MEETING COMPETITION DEFENCE

  • 81.

    The meeting competition defence is only applicable in relation to behaviour which otherwise

would constitute a pricing abuse. It can in addition only apply to individual and not to collective behaviour to meet competition. For this second type of objective justification it is necessary to apply a proportionality test. The Community Courts have considered that defending its own commercial and economic interests in the face of action taken by certain competitors may be a legitimate aim.62 In other words, to minimise the short run losses resulting directly from competitors’ actions can be a legitimate aim. This automatically implies that an objective justification is not possible if the dominant company is not able to show that its conduct is only a response to low pricing by others or if the Commission, for instance through documents seized at the company, has been able to demonstrate that the objective aim of the conduct is to directly foreclose competitors.

Proportional – burden on Domco 82. In order to fulfil the proportionality test the dominant company must in the first place show that the chosen conduct is a suitable way to achieve the legitimate aim. An objective justification is not possible if upon examination it is, for instance, established that the conduct also involves extra investments in capacity and is therewith not minimising losses directly resulting from the action taken by certain competitors. In case it is shown that the chosen conduct is a suitable way to achieve the legitimate aim, the dominant company must in the second place show that the conduct is indispensable, i.e. that the legitimate aim cannot be achieved to a similar extent by less anticompetitive alternatives and that the conduct is limited in time to the absolute minimum. It is for the dominant company to provide all the relevant

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Case T-30/89 Hilti, cited in footnote 18, paragraph, 118; Case T-83/91 Tetra Pak II, cited in footnote 58, paragraphs 83-84 and 138. Case 27/76 United Brands cited in footnote 5, paragraphs 189-191; Case T-65/89 BPB Industries Plc and British Gypsum Ltd v Commission [1993] ECR II-39, paragraph 69; T-228/97 Irish Sugar, cited in footnote 38, paragraphs 112 ,[Original seems to be lacking the end of this footnote Val checked from DG Comp’s website, error is in that too]

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