Price discrimination under EC competition law: The need for a case-by-case approach
Price discrimination is one of the most complex areas of EC competition law. There are several reasons for this. First, the concept of price discrimination covers many different practices (discounts and rebates, tying, selective price cuts, discriminatory input prices set by vertically-integrated operators, etc.) whose objectives and effects on competition significantly differ. From the point of view of competition law analysis, it is thus not easy to classify these practices under a coherent analytical framework. Second, there is a consensus among economists that the welfare effects of the (various categories of) price discrimination are ambiguous. It is hard to say a priori whether a given form of price discrimination increases or decreases welfare. The response to this question may indeed depend on which type of welfare standard (total or consumer) is actually pursued. Moreover, even if one agrees on a given standard, the welfare effects of discriminatory prices generally depend on factual issues, such as whether it increases or decreases total output. Third, the exact scope of Article 82(c), the only Treaty provision dealing with discrimination, is not entirely clear. While the European Commission (hereafter, the "Commission") and the Community courts have applied Article 82(c) to many different practices, there are good reasons to believe that this provision should be applied to a limited set of circumstances, most forms of discrimination being adequately covered by Article 82(b) or other provisions of the Treaty.
Against this background, the main objective of this paper is to throw some light on the compatibility of price discrimination with EC competition law. In order to do so, this paper does not seek to propose a grand unifying theory that would provide a single test offering a way to distinguish between practices compatible and incompatible with the EC Treaty. Instead, we offer an analytical framework which distinguishes between different categories of price discrimination depending on their effects on competition. Different tests may thus be needed to assess the compatibility of the practices belonging to these categories with EC competition law. Another objective of the paper is to show that Article 82(c) should only be applied to the limited circumstances where a non-vertically integrated dominant firm price discriminates between customers with the effect of placing one or several of them at a competitive disadvantage vis-a-vis other customers (secondary line price discrimination). In contrast, Article 82(c) should not be applied to pricing measures designed to harm the dominant firm's competitors (first line price discrimination) or to fragment the single market across national lines. As will be seen, relying on Article 82(c) to condemn such practices goes against the letter and the spirit of this provision and may also apply a wrong test to such practices. It is also not necessary since other Treaty provisions can be used to achieve this objective.