Price and prejudice : a legal and economic approach to rebates

Defence date: 13 January 2014Examining Board: Professor Giorgio Monti, European University Institute Professor Petros Mavroidis, European University Institute Professor Luis Ortiz Blanco, Garrigues & College of Europe Professor Daniel Sokol, Leivin College of Law, University of Florida.The thesis proposes an analysis of the evolving approach to abuse of dominance and monopolization through the case study of loyalty discounts as example of controversy both in the literature as well as in the case law. Much of this controversy draws from the fact that fidelity discounts constitute a price-based practice having similar effects to non price-based conducts such as exclusive dealing or tying. Therefore, evaluating their competitive impact necessarily requires a comprehensive assessment of vertical restraints as a whole. While the more economic approach to competition policy has influenced authorities' perception of rebates, different legal systems allow for different degrees of evolution in their actual assessment. This research puts into question the need for a hard law reform when it comes to practices calling for an economic assessment, given that the neutrality and consistency of economic tools may enable a soft law shifting of competition policy regimes

The Tomra Case: Rebates and exclusive dealing in the light (and shadows) of dominance (Case Note: Case T-155/06, Tomra Systems ASA and Others v. European Commission)

The General Court reaffirms its traditional form-based approach to dominance

Toward a Unified Theory on Exclusionary Vertical Restraints

The law of exclusionary vertical restraints—contractual or other business relationships between vertically related firms—is deeply confused and inconsistent in both the United States and the European Union. A variety of vertical practices, including predatory pricing, tying, exclusive dealing, price discrimination, and bundling are treated very differently based on formalistic distinctions that bear no relationship to the practices’ exclusionary potential. We propose a comprehensive, unified test for all exclusionary vertical restraints that centers on two factors: foreclosure and substantiality. We then assign economic content to these factors. A restraint forecloses if it denies equally efficient rivals a reasonable opportunity to make a sale or purchase (depending on whether the restraint affects access to customers or inputs). Market foreclosure is substantial if it denies rivals a reasonable opportunity to reach minimum viable scale. Where substantial foreclosure is shown, the restraint should generally be declared illegal unless it is justified by efficiencies that exceed the restraint’s anticompetitive effects