Post Danmark II: setting a legal test for rebates where there is none (II)
I explained last week why it is difficult to infer from the case law an operational test for the assessment of standardised rebates. The purpose of this second post is to start a discussion about the principles that should guide the definition of such a test. I do not believe a single approach is possible or conceivable, and I welcome your views on the question. As in other areas, there is more than one substantive standard that would appropriately capture the principles underlying the case law. Regardless of one’s stance, I see the following ideas as a sensible starting point for a discussion around the definition of a legal test:
- The ECJ presumes since Hoffmann-La Roche that quantity rebates are pro-competitive (or, if one prefers, a valid form of competition on the merits). Any legal test should be devised in a way that is compatible with this principle (both in theory and in practice).
- Quantity rebates do not always have a negative impact on the competitive process. One of the fundamental lessons to draw from Michelin II is that exclusionary effects are not an inevitable consequence of the implementation by a dominant firm of a system of quantity rebates.
- In Post Danmark I, the Court considered that the award of selective price cuts to attract the customers of a competitor is not abusive by its very nature. Absent evidence of predatory pricing within the meaning of AKZO, it is necessary to show that the practice has (or is likely to have) exclusionary effects.
Standardised rebates vs. selective price cuts. I would conclude from the above that a system of standardised rebates like the one examined in Post Danmark II should only be deemed abusive under Article 102 TFEU where there is evidence of its actual or likely exclusionary effects. This is the substantive standard that applies to selective price cuts à la Post Danmark I. I cannot think of a reason why a scheme of standardised quantity rebates should be subject to a more stringent test. In Post Danmark I, the price cuts were specifically devised to attract the customers of a rival. What would justify a stricter treatment of price reductions that apply uniformly across the board?
If anything, a system of standardised rebates is clearly less suspicious and more obviously pro-competitive than the application of selective price cuts. In the case of quantity rebates, price reductions are the consequence of an increase in the amount acquired from the dominant firm. Selective price cuts, instead, reward a decision to switch suppliers. It is therefore safer to presume that the former reflect the cost savings made by the dominant firm. If this is so, I would claim that the need to provide evidence of an exclusionary effect in the case of quantity rebates became inevitable the moment Post Danmark I required evidence in this sense in relation to selective price cuts.
Establishing exclusionary effects in practice. The next question is of course that of how exclusionary effects are established in the context of a particular case. The issue can be approached in two ways. One possible approach is to assume the exclusionary effects of a rebate scheme from the fact that it is ‘loyalty-inducing’. This legal test would be problematic for several reasons, some of which have already been mentioned above and in last week’s post.
- One reason is that we know from the case law (the ‘experience’ mentioned by the Court in paragraph 51 of Groupement des Cartes Bancaires) that the exclusionary effects of rebate schemes cannot simply be assumed from their ‘loyalty-inducing’ nature, even when applied by dominant firms. They may or may not be manifested in the context of a particular case.
- Another reason is that the point of the selective price cuts examined in Post Danmark I was not conceptually different from that of ‘loyalty-inducing’ rebates. The price cuts in question sought to attract the customers of a rival. In other words, they sought to reward disloyalty. I cannot think of a valid reason why ‘loyalty-inducing’ rebates would be prima facie prohibited irrespective of the effects they produce and ‘disloyalty-inducing’ price cuts allowed absent evidence of exclusionary effects.
- Finally, one should bear in mind that all rebates are, at least to some extent, ‘loyalty-inducing’. Rebates, irrespective of their nature and objective, provide an incentive to buy more from a particular supplier. As a result, it seems possible to argue in virtually every instance that a given scheme is ‘loyalty-inducing’ and as such should be prohibited. Thus, not only would this approach fail to provide the basis for a practicable legal test but it would also contradict the principle whereby quantity rebates are presumed to be pro-competitive.
A second possibility is to endorse the logic underlying the Court ruling in Post Danmark I. In essence, this approach would involve showing that the practice it at least likely to harm the ability and the incentive to compete of equally efficient rivals. A legal test revolving around this question would have the advantage of consistency. The same substantive standard would apply to all practices that are not deemed abusive by their very nature. In the current state of the case law, this category includes not only quantity rebates and selective price cuts, but other practices like ‘margin squeezes’, the abusive nature of which is established in accordance with the same principles.
There are several ways in which the impact of a system of quantity rebates on rivals’ ability and incentive to compete can be established. The Court held in Post Danmark I that equally efficient competitors are unlikely to be excluded where the dominant firm charges above-cost prices. Accordingly, it would be necessary to show that the system of quantity rebates is in some way predatory (that is, that it forces rivals to sell below cost). I welcome views on the question, but I struggle to find how it would otherwise be possible to establish the exclusionary effects of schemes like the one examined by the Court in Post Danmark II. Such schemes do not seek to reward loyalty, nor are they conditional upon customers buying a certain share of their needs from the dominant firm. AKZO and Post Danmark I (as opposed to Hoffmann-La Roche and Delimitis) therefore look like the closest precedents.
A legal test based on these principles would not only have the advantage of consistency but would be infinitely easier to administer than the existing unstructured standard. We tend to forget, when thinking about these matters, that the AKZO test was developed by the Court, not the Commission. In its decision, the latter favoured an unstructured standard based on a range of factors. According to the Commission in AKZO, pricing below cost would not be a decisive criterion to establish the abusive nature of a predatory pricing campaign. The Court rejected this approach and crafted a substantive test confining administrative action within a set of boundaries well-defined in advance. Post Danmark II raises, in my view, the exact same issues.