In terms of the sacrifice element, European Commission (“Commission”) will assess whether by charging a lower price for its output or by expanding its output over the relevant time period, the dominant undertaking incurred or is incurring losses that could have been avoided. The Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (“Commission’s Guidelines”) provides two elements for predatory pricing: (i) sacrifice and (ii) anti-competitive foreclosure. In general, it is considered unlikely that predatory conduct will create efficiencies.įrom EU perspective, predatory pricing falls within the scope of Article 102 of the Treaty on the Functioning of the European Union (“TFEU”).
If sufficient reliable data are available, the equally efficient competitor analysis could also be applied to determine whether the conduct is capable of harming consumers. documents that show a predatory strategy), if any. For such analysis, various cost parameters (in line with the competitive landscape/characteristics of the relevant market) could be taken into account in conjunction with direct evidence (e.g. whether the conduct entails a deliberate sacrifice).
In general, the starting point of the analysis is to assess whether the dominant undertaking incurred or is incurring avoidable losses for the relevant time period (i.e.
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