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