Överprissättning – En undersökning av oskäligt hög prissättning som konkurrensrättsligt missbruk med särskild fokus på prissättning under Covid-19 pandemin
Sammanfattning: The prohibition against abuse of a dominant position under article 102 in the Treaty on the Functioning of the European Union is fundamental in EU competition law. Such abuse may consist in imposing unreasonably high purchase or selling prices, so-called excessive pricing. The purpose of this thesis is to examine the abusive practice ‘excessive pricing’, and focus lies on the methods that have been established to demonstrate such behavior. Furthermore, the thesis aims to analyse how the Covid-19 pandemic, and the following extraordinary market conditions, might affect the legal assessment of excessive pricing. In EU case law, several different methods have been used to demonstrate an excessive price. In General Motors, the European Court of Justice defined an excessive price as a price which is excessive in relation to the economic value of the service provided. In the subsequent case United Brands, the European Court of Justice developed a method for determining when the price bears no reasonable relation to the economic value. The court focused on the selling price of the product in relation to its cost of production. In recent practice from the European Court of Justice, other ways of determining whether a price is excessive have been established. A mutual theme for these is that the dominant company’s prices have been compared with prices of similar products, without explicitly mentioning the economic value of the product. The prices of the dominant company have been compared with products on the same market, with products on another market in the same member state, and with products in other member states. It can be concluded that the efficiency of the methods established to detect an excessive price depends on the specific circumstances of the individual case. In some cases, it can be difficult to estimate the cost of providing the product, in others it is difficult to find a suitable object to compare the price with. Therefore, a combined approach of the various methods is preferable when investigating a possible excessive price. The Covid-19 pandemic puts the difficulties of applying the methods to the test. The price increases that have taken place on certain products are often a natural consequence of a rapidly increased demand, and not necessarily the result of unfair pricing. However, it is important that competition authorities intervene when an undertaking, without legitimate grounds, charge unreasonably high prices. It is particularly important that consumers are protected against such unreasonably high prices in a problematic emergency situation such as the Covid-19 pandemic.
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