AEDC
Asociacion Española de Defensa
de la Competencia
Public Discussion on Article 82
Single Branding & Rebates
Antonio Creus
Brussels, 14th June 2006
General Overview
• Introductory remarks
• Regarding the Discussion Paper
• Aren’t we drafting a new “Article 82.3” ?
• Is the new approach realistic enough?
AEDC
Rebates & Single Branding
• General comment: positive economic approach
• BUT: clearer rules needed, allowing dominants
predictability of their conduct.
• AND: Such rules should facilitate application of Art.
82 by national authorities and courts
AEDC
Rebates & Single Branding
• Negative effects of single branding obligations and
rebates
• BUT: At the very least rebates involve lower prices,
which normally should be welcomed, since it benefits
consumers.
• Most undertakings use single branding obligations
and rebates on a regular basis
AEDC
Rebates & Single Branding
• Single branding: less dogmatic approach towards
non-predatory discounts by dominant undertakings
• Purchasing obligations which are short-term or easy
to terminate probably do not have foreclosure effects
AEDC
Rebates & Single Branding
• Presumption of illegality based on the degree of
foreclosure.
• BUT: take into account the following:
• market foreclosure is not an end in itself
• Single branding may produce pro-competitive effects
• Single branding is a type of competition for the market
AEDC
Rebates & Single Branding
• The Commission should also have clarified some
other points, such as:
• The duration of reference period for calculating the
rebate applicable to a given client.
• Quantitative rebates and loyalty rebates.
AEDC
Rebates & Single Branding
• Rebates: presumption of legality when the effect is to
reduce prices for the final consumer?
• At least establish a type of ‘safe harbour’
• Take into account market power of clients
AEDC
AEDC
Thank You