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EUROPEAN COMMISSION DG Competition - page 74 / 113





74 / 113

(d) The dominant company applies the rebate system to a good part of its buyers and this system therefore affects, if not most, at least a substantial part of market demand, and

(e) There are no clear indications of a lack of foreclosure effect such as aggressive and significant entry and/or expansion by competitors and/or switching of customers,

The Commission is likely to conclude that the rebate system creates a market distorting foreclosure effect and thus constitutes an abuse of the dominant position. In case the dominant company does not apply the rebate system to a good part of its buyers but only selectively to some and not to others, the Commission will in addition investigate whether or not these selected buyers are of particular importance for the possibilities of entry and expansion of competitors. The Commission’s preliminary conclusion will be strengthened where there are also clear indications of an actual foreclosure effect such as exit or declining market shares of competitors or de-listing of their products.

Domco may rebut presumption of foreclosure 163. In case such a presumption of abuse is established, the dominant company may rebut the Commission’s preliminary conclusion by showing that the rebate system nonetheless does not and will not have a foreclosure effect, for instance because the individualised or standard volume targets are set particularly low compared to the buyers’ total purchases from the dominant company. The dominant company may thus be able to show that the rebate system does not and will not create a foreclosure effect because most or all buyers can switch to and purchase substantial additional amounts from other suppliers without losing the rebate. Another way to rebut the Commission’s preliminary conclusion may be to show that entry or expansion of competitors is in effect not limited to the amount assessed by the Commission as the commercially viable share. In case the dominant company can show that entry or expansion can take place without extra difficulties at a larger scale, then the Commission will reassess the effective price in the light of this higher amount.

Where required or commercially viable share uncertain

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