The CJEU’s Ruling in AKKA / LAA on Excessive Pricing: One Small Step Forward on a Long Road? By By Will Leslie (Linklaters)1
The CJEU’s ruling on excessive pricing in AKKA / LAA was, if anything, timely. Media coverage of alleged excessive pricing has been spurring competition authorities into action: the Danish Competition Council, the European Commission, Germany’s FCO and the UK’s CMA all have excessive pricing cases in sectors from generic pharmaceuticals to airline pricing.2
Commentators, courts and competition authorities continue, however, to struggle with the fundamental question of what makes a high price excessive. The jurisprudence up until now sheds little light. While Article 102(a) TFEU explicitly prohibits dominant firms from imposing, directly or indirectly, ‘unfair’ selling prices, the line between a merely high price and an excessive and unfair price has remained unclear.
Courts and regulators continue to refer to the test set out in United Brands (1978) which stipulates only that:
‘the difference between the cost actually incurred and the price actually charged is excessive and … [the] price … is either unfair in itself or unfair when compared with competing products.’3
Taken at face value, the test does not set a high bar. As AG Wahl diplomatically observed in his opinion …