Discount Policies in US and EU Antitrust Enforcement Models: Protecting Competition, Competitors or Consumer Welfare?

"In this paper, by summarising the main business justifications highlighted by the economic and business literature underlying the adoption of quantitative, or so-called “linear”, pricing, and non-quantitative rebates, the so-called “non-linear pricing” or “all-unit/rollback rebates”, I come to the conclusion that even non-linear pricing has specific and well-rooted economic and business motives.

In the review of US and EU case law on discounts I highlight the enforcement standards that have been endorsed on both sides of the Atlantic in the different phases that have characterised the relevant case law. Placing greater emphasis on the most recent developments, such as Le Page and its subsequent case law, the Discussion Paper, as well as the recent Tomra decision, I outline the differences in approach before and after Le Page and the Discussion Paper.

Finally, drawing from the case law and the decisional practice, I focus on the competitors’ harm test, comparing the advantages and disadvantages of the models that have been endorsed in the EU and the US."