Rebate Schemes and Discount Practices by Dominant Companies Under EU Competition Law: Tomra Appeal Decision
June 4, 2012
The European Court of Justice (ECJ) recently handed down a significant decision holding that the Tomra Group had abused its dominant position through the use of exclusionary strategies in the European Economic Area (EEA). The judgment follows the General Court and ECJ’s traditional formalistic, or per se approach, which generally treats rebate schemes implemented by dominant entities as anti-competitive. The ECJ’s decision is in tension with the effects-based approach to abuses of dominance championed by the European Commission’s 2009 Guidelines on abuse of dominance. This update explores this tension and offers pragmatic advice to dominant companies that are considering implementing a discount scheme in the EU.