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CJEU ruling in Post Danmark II – further guidance on rebate schemes

André Pretorius, Kyriakos Fountoukakos, Kristien Geeurickx, Sergio Sorinas, Michael Dietrich, and Henar Gonzalez. Herbert Smith Freehills Legal Briefings, October 2015

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On 6 October 2015, the Court of Justice of the EU ("CJEU") handed down its ruling in Post Danmark II, providing guidance on how to assess the legality of rebate schemes under EU competition rules. In response to a preliminary reference by a Danish court, the CJEU ruled that:

In order to determine whether a rebate scheme implemented by a dominant undertaking is abusive, all the circumstances of the case should be examined, including the rules for granting the rebates, the extent of the dominant position, and the conditions of competition on the relevant market.

The application of the as-efficient-competitor test does not constitute a necessary condition for a finding of abuse. The as-efficient-competitor test, i.e. whether the conduct complained of could foreclose the market to a competitor at least as efficient as the dominant undertaking, is merely one tool amongst others to assess whether there is an abuse.

In order for there to be a finding of abuse, whilst the anti-competitive effect of a rebate scheme operated by a dominant undertaking must be probable, there is no need to show that it is of a serious or appreciable nature.

This is the second time in recent years that Post Danmark has been the subject of a preliminary ruling clarifying the application of Article 102 TFEU. In 2012, the CJEU handed down its preliminary ruling in Post Danmark I which clarified the application of Article 102 TFEU to discriminatory pricing.

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