6/29/2023 0 Comments Predatory pricing deutsch![]() In 2015, the EU General Court 5 dismissed an action for annulment by the Slovak postal operator against the Commission decision and confirmed the Commission's assessment that re-monopolizing hybrid mail to the benefit of the incumbent postal operator was contrary to Article 106(1) in conjunction with Article 102 TFEU. As a consequence, Slovak postal operators, which had already entered this market, were prevented from continuing their activity and their economic viability was endangered. The amendment in question had extended the monopoly of the incumbent operator, Slovenská Pošta, to the delivery of hybrid mail services whereas this activity had until then been open to competition. In effect, the Commission found that certain amendments to Slovakia's postal legislation infringed the competition rules on dominant market positions. The Commission has also intervened directly in a case involving the Slovakian postal sector where it found that the Slovak State had unfairly granted a concession to the Slovakian incumbent postal operator in the hybrid mail sector thereby effectively re-monopolizing the sector. In a second seminal ruling in 2015, also involving the Danish national postal operator Post Danmark II 4, the European Court of Justice provided further guidance on the circumstances in which certain types of fidelity rebates offered by dominant firms could be considered anti-competitive. ![]() In a landmark judgment and following an appeal by Post Danmark, the European Court of Justice provided guidance on the definition of illegal predatory pricing, specifying the circumstances in which it would be necessary to show that the prices had actual or probable exclusionary effects to the detriment of competition. For example, the Danish NCA had found that Post Danmark 3, the Danish incumbent postal operator, had engaged in anti-competitive behaviour in the form of predatory pricing in relation to the customers of its only competitor. Some of these NCA cases have given rise to important case law of the European Court of Justice through the preliminary reference procedure. Since liberalisation, the Commission has worked closely with the National Competition Authorities (NCA) in several cases where the provider of the universal postal service was found to have engaged in an abuse of a dominant position. It was found that Deutsche Post had engaged in anti-competitive conduct by discriminating between different customers, by charging excessive prices and by refusing to supply certain services unless an unjustified surcharge was paid. In one of the first cases 2 following the first liberalization measures, the Commission found that Deutsche Post, the German national incumbent, had engaged in abusive behaviour in the German letter market by intercepting, surcharging and delaying incoming international mail, which it had erroneously classified, as circumvented domestic mail. The Commission also condemned the scheme of fidelity rebates granted by Deutsche Post in the mail order parcel deliveries market because it tended to foreclose competition in this market. The Commission in its decision clarified the conditions under which below-cost pricing charged by a monopoly operator would be considered abusive and therefore illegal under the competition rules. These practices were found to be harmful to competition. In one of its first formal decisions in the postal sector the Commission condemned Deutsche Post AG 1 the German national postal operator, for adopting certain anti-competitive practices, involving fidelity rebates and predatory pricing in the market for business parcel services. In implementing the competition rules to the European postal services markets the Commission applies the principles set out in the 1998 " Notice from the Commission on the application of the competition rules to the postal sector and on the assessment of certain State measures relating to postal services". In the postal sector, there is a particular need to ensure that the objective of facilitating and encouraging new entrants is not undermined through excessive market consolidation. ![]() ![]() It is also necessary, through merger control law, to prevent too much concentration of market power in too few market players. ![]() Added vigilance is needed for signs of exclusionary behaviour, which would impede effective competition. As the postal sector has been gradually liberalised there is a greater need for enforcement of the competition rules so as to ensure that these markets remain open to competition. ![]()
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