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Business Articles Awards > Unilateral Conduct

ECR adopts Post Danmark Judgment on Rebates

Jay Modrall, Norton Rose Fulbright Publication, October 2015

See James R. Modrall's resume

On 6 October 2015, the European Court of Justice (the Court) issued its preliminary ruling in Post Danmark A/S v Konkurrencerådet (Competition Council)1, which concerns the antitrust treatment of a retroactive rebate scheme in the market for the distribution of bulk mail. The case is another significant milestone in a series of cases on the role of economic analysis in abuse-of-dominance cases under EU law.

To the disappointment of many, the Court rejected Post-Danmark’s argument that the Konkurrencerådet should have applied the so-called as-efficient-competitor test and endorsed a more formalistic, traditional approach to the assessment of rebate schemes. The Court also confirmed that there is no de minimis or appreciability requirement for the finding of an abuse of a dominant position.

The Court’s Post Danmark decision confirms that companies potentially holding a dominant position in EU market(s) need to be very careful in designing rebate schemes, even if such schemes appear to have no appreciable effect on competition.

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