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discussed. First, we present a brief overview of the current approaches to price discrimination by the European Competition Authorities (the Commission, the court of first instance and the court of justice). Then we turn to some microeconomic analysis of price discrimination. Finally, we show how a competition authority should proceed in order to analyze a discrimination case and we suggest that price discrimination should not be treated differently from other practices which serve the same purpose.

6.1.1 Overview of the current approaches to price discrimination

As pointed out earlier, Article 82 makes a difference between practices that are designed to hurt competitors of the (dominant) firm, for instance through the capture of consumers, and those who are detrimental to firms that are not rivals of the firm initiating the practice, typically downstream firms between which an upstream firm discriminates. Geradin and Petit (2005) call practices that hurt competitors of the dominant firm “first line” price discrimination, and those which place customers at a disadvantage vis-à-vis other customers with whom they are competing “second line” price discrimination. According to these authors, the Commission and the

community courts (ECJ and CFI) have applied Article 82(c), which is designed to fight exclusively second line price discrimination, in cases for which Article 82(b) would have been more convenient, and vice versa.

A strict application of Article 82(c) requires first that price discrimination applies to trading partners of the dominant firm, second that these trading partners compete with each other, and finally that a competitive disadvantage between them is created.

Therefore, following this distinction, the downstream market(s) on which these firms compete should be carefully identified, and the disadvantage resulting from price discrimination also.

In a number of cases, these steps are lacking and many cases have been sanctioned under Article 82(c) without a clear statement of the nature of the disadvantage created. This leads a number of scholars to think that the level of evidences required in order to find an abuse under 82(c) is quite low. According to a rigorous distinction between first line and second line effects, two kinds of mistakes may result from this confusion: a practice may be sanctioned under 82(c) despite the fact that discrimination has exclusionary effects on the competitors of the firm that discriminates and not on “trading partners”; or it may be sanctioned under 82(b) despite the fact that some downstream firms have incurred a competitive disadvantage with respect to others due to discrimination.

Geradin and Petit² mention give a number of examples of both categories. In many cases, the practice at work takes the form of rebates. Rebates are generally considered by the Commission and the Courts as non discriminatory provided that they reflect cost economies. In opposite cases, like for instance in Michelin II, the rebates have been found anti-competitive and discriminatory in the sense that they distorted competition between downstream competitors. Following the authors, this should have been fined under art. 82(c), which was not the case. By contrast, in the Hoffman Laroche case, fidelity rebates have been condemned under 82(c)

2 See also Waelbroek M. (1995).

without any analysis of whether the rebates had an impact on downstream competition or not. Rather, the ECJ had in mind restrictions to competition on the dominant’s firm market (a case that strictly speaking should have been fined under 82(b)), due to the fact that the customers of Hoffman had an incentive to continue to buy the products of the latter rather than to switch to rivals’ ones, which was precisely the aim of the fidelity rebates system. The competitive damage took place on the direct rivals of Hoffman, however, the court sanctioned discrimination along 82(c) without looking for any competitive disadvantage between customers resulting from price discrimination by Hoffman. Many other cases, involving other forms of practice, have been fined under 82(c), without any assessment of the corresponding above mentioned conditions.

Further cases involving discrimination, with the consequence of creating a disadvantage in competition between downstream firms, have nevertheless been sanctioned under 82(b). In the Eurofix-Bauco v. Hilti case, selective price cuts were applied by Hilti to some of his customers, creating thus a disadvantage for the others. But the Commission focused on the exclusionary side of the practice, seeing this practice mainly as a mean to exclude its competitors.

Other situations, involving bundling and tying, reflect the same hesitation of the Commission or of the courts between the application of Articles 82(b) and 82(c). This contributes to increase the legal uncertainty that parties face.

What these example show is that different approaches to 82(b) and 82(c) lead to a confusing situation. On the one hand, the text law makes a clear-cut separation between practices that should be fined under Article 82(b) (because they constitute an abuse that hurts the rivals of the dominant firm) and those that should be the concern of Article 82(c) (because discrimination creates a disadvantage for some of the trading partners of the dominant firm).

This leads some authors, like Geradin and Petit, to argue in favour of a more rigorous application of the required criterion in order to apply 82(c), together with a case-by-case analysis. We share some of these views, in that the identification of the competitive

damage created by the practice should be carefully described. For instance, stating the market (downstream markets or home market of the discriminating firm) on which discrimination produces a competitive harm is obviously essential. However we depart from this approach on some points: more than requiring a stricter application of parts b or c of Article 82 to discrimination practices, we argue in favour of a similar treatment of practices that have the same impact on competition. Relying on economic analysis (2), we attempt to show (3) that the present confusing situation is due to the adoption of a form-based approach of Article 82. An economic approach would favour an analysis of the (exclusionary) effects of any practice, and would thus induce a more consistent analysis of different practices that have the same effect. Such an approach avoids the problem of getting deep into the research of what discrimination is and what it is not. In this spirit, discrimination involves all the practices in which consumers pay different prices according to the circumstances of their purchase. Discrimination is thus present in other practices like bundling, fidelity rebates, quantitative discounts etc. We now present some of the non strategic and of the strategic aspects of price discrimination.