The role of economic analysis in predatory pricing cases. Effects of the latest CFI ruling on the France Télécom case
In a judgement issued in January 2007, the European Court of First Instance (CFI) approved one of the Commission's Decisions that had omitted in-depth economic analysis in connection with the unlawfulness of predatory pricing, had not been based on inquiry into the expected market effects of the allegedly illegal behaviour, and had omitted to apply the so-called recoupment test (i.e. examine whether the dominant firm could reasonably count on the return of its former losses by raising its prices later). What can be expected, after that judgement, in the future role of economic analysis in anti-trust cases? Why should national authorities and courts or even the Commission itself take the much higher risks and greater effort of applying economic analysis to substantiate their cases if they can prove them much more easily on formally based legal grounds? Similarly, can future competition cases be expected to move back from effect-based approaches to legally based ones?
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