Piktnaudžiavimo dominuojančia padėtimi, pasireiškiančio nesąžiningų kainų nustatymu esmė ir ypatumai: grobuoniškos kainodaros problema

The abuse of dominant position by establishing predatory pricing raises when the undertaking, seeking to eliminate its competitor determines to sell goods for unreasonably low price, while after elimination or weakening of competition subsequently raises those prices in order to recoup losses and earn higher profits. In theory there is consensus that determination of such pricing must be based of two-tier tests, which are comprised of price-cost comparison and analysis of subjective intent. Such test has been determined in AKZO case and until recently is applicable in the EC and Lithuanian competition law. It states that the price below VKS is presumed to be predatory; in such case if the price is between VKS and VVS, it can be acknowledged to be predatory if it is used in order to eliminate the competitor. While evaluating this test, the paper discusses practical problems arising while applying VKS criterion and raises proposal to change it by more accurate VIS criterion. Moreover, paper raises the idea that dominant element in AKZO test is not economical elements, but subjective predatory intent. Therefore economical elements must be treated only as a tool, providing the possibility to disclose the content of subjective intent. While analyzing the rules for determination of predatory pricing, the paper also discusses the third criterion which settled in EC practice and maintains the possibility to determine predatory pricing even if the prices are above VVS. After critical evaluation of this criterion, the paper proposes to eliminate it or establish such criteria, which would reflect the exclusive nature of its appliance. In the end of the paper, the discussion concerning predatory pricing elements is significantly supplemented by the analysis of undertaking’s possibilities to defend from the allegations of predatory pricing.