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Excessive Pricing in Competition Law: Never Say Never?

Massimo Motta and Alexandre de Streel

the Court of Justice established that a price is unfair when a dominant firm has exploited its
dominant position so as to set prices significantly higher than those which would result from
effective competition. Hence, a price is excessive and unfair when it is significantly above the
effective competitive level, or above the economic value of the product. (16)1

According to the European Court of Justice (ECJ) in United Brands a price is excessive if it has
no reasonable relation to the economic value of the product and this can be determined by a
twofold test: it should be shown that (i) the price-cost margin is excessive and (ii) the price
imposed is either unfair in itself or when compared to competing products (paras 250-252).
The European Commission recently followed this test in Scandlines and highlighted a number of
difficulties. It was argued that even if it were possible to prove that a price-cost margin is
excessive, there is little guidance as to whether a price is unfair when comparisons are drawn, if
it is possible to make such comparisons at all2.

1
Motta, Massimo, and Alexandre de Streel. Excessive Pricing in Competition Law: Never Say Never? In The Pros
and Cons of High Prices, edited by Konkurrensverket Swedish Competition Authority, 16. Stockholm, 2007.
2
Pinar Akman and Luke Garrod, 'WHEN ARE EXCESSIVE PRICES UNFAIR?' (2011) 7(2) Journal of Competition Law
and Economics 403426