Are excessive pricing cases few and far between? A quantitative analysis of fifty years of European jurisprudence 1971–2021

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The prohibition against excessive pricing dates back to the years of Babylonian King Hammurabi. Nevertheless, the prohibition is described by many as being “controversial” and against “mainstream economics”, which is why it should be applied rather sparsely. It has also rather routinely been claimed that the actual number of excessive pricing cases is “scarce”, “limited” and so on. Despite the historical roots, and even though the prohibition represents what many laypeople (and scholars) would understand as the prima facie function of competition law, the prohibition in many textbooks and commentary is still described as an “oddity.” This assertion, although recurrent in certain judgments and political documents, is quantitatively false. As this article concludes, cases of excessive prices in European competition law are not rare. Without being exhaustive, this article reports 28 cases at the European level and 99 cases at the national level between 1971 and 2021.

I. Introduction 1. Unfair and excessive pricing by dominant undertakings under Article 102(a) of the Treaty on the Functioning of the European Union (TFEU) [1] is prohibited. A prohibition with deep roots dating back to the days of Hammurabi, Jewish Halacha, Christian Bible, Roman law, Thomistic just price concept and all the way to the founding of the European Economic Community in 1957 (the EEC Treaty). [2] 2. The EEC Treaty in its Article 86 defined the prohibition as “Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair

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