From Greek olive oil to Latvian music: Is there any such thing as unfair prices?

Whether antitrust laws should and, if so, under what conditions, prohibit dominant firms to charge “excessive” or “unfair” prices to consumers remains a very controversial issue. It is thus not surprising that, in that respect, different jurisdictions have made different choices. For example, US antitrust law is commonly regarded as not barring “excessive pricing” in and of itself. Conversely, the EU treaties include such conduct among the types of abuse of dominant position prohibited under Article 102 TFEU. In the past, the EU antitrust authorities have been very cautious in applying Article 102 TFEU against high prices applied by dominant companies that were merely exploitative. For that reason, there is only limited case law from the Court of Justice, which thus leaves many interpretative issues open. Some of those issues have, however, been recently brought before the Court of Justice in the AKKA/LAA case. The present contribution aims at highlighting the issues raised by that case, in the context of the Court’s existing case law. The AKKA/LAA case arrives at the right time before the Court since, lately, there seems to be renewed interest in the European Union concerning abuse by excessive pricing.

This article is an excerpt of Douglas H. Ginsburg Liber Amicorum, Vol. 1, released by Concurrences in March 2018. Usual disclaimers apply. I am greatly indebted to my legal secretary Luca Prete for invaluable aid in preparation of this contribution. This article reflects the state of the law on 31 August 2017.

I. Introduction 1. The idea that goods have an intrinsic economic value and, consequently, that a “fair,” “just” or “natural” price must exist for their sale, is as old as economic thinking itself. Some references to offences relating to the charging of excessive prices (for example as regards funeral services) [1] have been found in the Sumerian-Babylonian Codes of Urukagina (24th century BC) and Hammurabi (1754 BC). [2] Those issues are discussed more clearly in the works of Plato [3] and Aristotle. [4] In particular, Aristotle tells the story of Thales of Miletus — one of the seven wise men of Greece — who managed to create what is often referred to as one of the first known monopolies in the world. According to Aristotle, Thales used his knowledge of astronomy observation to predict,

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  • European Court of Justice (Luxembourg)


Nils Wahl, From Greek olive oil to Latvian music: Is there any such thing as unfair prices?, May 2018, Concurrences Review N° 2-2018, Art. N° 86617,

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