112. It will need to be shown on the basis of objective factors that the pricing of the dominant company has a predatory intent, that it objectively speaking is part of a strategy or
plan to predate. This can be shown with the help of various elements, which individually or together may prove such a strategy. The following elements may in particular be important in this respect: direct evidence of intent, evidence that the pricing only makes commercial sense as part of a predatory strategy, the actual or likely exclusion of the prey, whether certain customers are selectively targeted, whether the dominant company actually incurred specific costs in order for instance to expand capacity, the scale, duration and continuity of the low pricing, the concurrent application of other exclusionary practices, the possibility of the dominant company to off-set its losses with profits earned on other sales and its possibility to recoup the losses in the future through (a return to) high prices. Such a strategy or plan, by showing objective intent, is also an indication of likely effect.
DIRECT EVIDENCE OF A PREDATORY STRATEGY
g. Domco’s documents
Direct evidence of a predatory strategy can consist of documents from the dominant
company, such as a detailed plan demonstrating the use of predatory prices to exclude a rival, to prevent entry or to pre-empt the emergence of a market, or evidence of concrete threats of predatory action. Such evidence needs to be clear cut about the predatory strategy and for instance indicate the specific steps the dominant company is taking and not just concern company internal general talk that the dominant company “will crush the competition”.71
If direct evidence, no need to prove other elements
114. In case of such direct evidence it does not need to be shown that also other elements point towards predation. It may be assumed that the dominant company, as it has devised a clear strategy to predate, also has the means to predate and that its pricing behaviour does or will
71 For instance in the AKZO case, the Court agreed with the Commission that there was clear evidence of AKZO threatening ECS in two meetings with below cost pricing if it did not withdraw from the organic peroxides market. In addition there was a detailed plan, with figures, describing the measures that AKZO would put into effect if ECS would not withdraw from the market.