International Antitrust Law & Policy: Fordham Corporate Law 2001 - Hardcover
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Chapter 17
EXCESSIVE PRICING UNDER EC
COMPETITION LAW; AN UPDATE IN THE
LIGHT OF ‘‘DUTCH DEVELPOMENTS’’
Erik Pijnacker Hordijk†
I. INTRODUCTION
During its first years of existence, the Dutch Competition Authority (the
NMa) has investigated several cases of alleged excessive pricing under
Article 241 of the 1998 Dutch Competition Act.2 Because Article 24 of the
Competition Act is meant to be a clone of Article 82 of the EC Treaty3 and
because of the potentially wide impact of the policy developed by the NMa, it
may be worthwhile to provide the distinguished Fordham audience with a
critical analysis of these ‘‘Dutch developments.’’ Indeed, one cannot exclude
the possibility that the approach of the NMa may be a source of inspiration
for other European competition authorities, including the European Commission.
In order to put the ‘‘Dutch developments’’ into perspective, this paper
will start out with a brief update on case law and doctrine on excessive
pricing under Article 82 EC. Moreover, some references will be made to the –
Partner, De Brauw Blackstone Westbroek, Linklaters & Alliance, Amsterdam.
The author wishes to thank Yvo de Vries for his help in preparing this paper. Mr
Pijnacker Hordijk’s firm represents a number of firms that have been involved in
national proceedings that will be discussed in this paper (albeit not necessarily always
the firms that were subjected to the investigations). The object of this paper is,
however, to address problems inherent in the assessment of excessive pricing under
competition law generally. This paper reflects the personal opinion of the author only.