The EU Court of Justice rules on issues concerning retroactive rebates and the procedures through which these rebates can be characterized as abusive (Post Danmark II)

Introduction On 6 October 2015, the European Court of Justice (the Court) issued its preliminary ruling in Post Danmark A/S v Konkurrencerådet (Competition Council), which concerns the antitrust treatment of a retroactive rebate scheme in the market for the distribution of bulk mail. The case is another significant milestone in a series of cases on the role of economic analysis in abuse-of-dominance cases under EU law. To the disappointment of many, the Court rejected Post-Danmark’s argument that the Konkurrencerådet should have applied the so- called as-efficient-competitor test and endorsed a more formalistic, traditional approach to the assessment of rebate schemes. The Court also confirmed that there is no de minimis or appreciability requirement for the finding of an abuse of a

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Henar González Durántez, Kyriakos Fountoukakos, Sergio Sorinas, Michael Dietrich, André Pretorius, Kristien Geeurickx, The EU Court of Justice rules on issues concerning retroactive rebates and the procedures through which these rebates can be characterized as abusive (Post Danmark II), 6 October 2015, e-Competitions Bulletin October 2015, Art. N° 79514

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