the meeting competition defence can normally not be applied. Pricing below AAC is in general neither suitable nor indispensable to minimise the dominant company’s losses. In case the pricing abuse concerns pricing above AAC the meeting competition defence will only apply if it is shown that the response is suitable, indispensable and proportionate. This requires that there are
no other less anti-competitive means to minimise the losses and that the conduct is limited in time to the absolute minimum and does not significantly delay or hamper entry or expansion by competitors.
In general, no efficiency defence to predatory pricing
133. An efficiency defence can in general not be applied to predatory pricing. It is highly unlikely that clear efficiencies from predation can be shown and even when they exist that predation is the least restrictive way to achieve them. In addition it is similarly unlikely that, in the case that such benefits arise, that in the longer run some of these benefits are passed on to the customers and that these benefits outweigh the loss of competition brought about by the predation.
SINGLE BRANDING AND REBATES
A supplier, whether manufacturer or distributor, has various ways in which it can oblige or
induce its buyers to purchase all or at least a significant proportion of their requirements from it84. Most straightforwardly, its product, in terms of price/quality ratio, may simply be more attractive than competing products. A superior price/quality ratio for individual orders of customers is unobjectionable under Article 82 because it is competition solely based on the merits, apart from what is said on predation in section 6. The supplier may however also use single branding obligations and rebate systems to attract more of customers’ demand.
The reverse may also be the case, i.e. a buyer, whether manufacturer or distributor, can oblige or induce its suppliers to sell all or at least a significant proportion of their output to it. Such possibly abusive practices are not dealt with here.