Piktnaudžiavimas dominuojančia padėtimi, pasireiškiantis nesąžiningų kainų nustatymu. Esmė ir ypatumai

Abstract

European Union’s competition law problem, considered in this paper, is the absence of common principles, used to assess an abusive behaviour, imposing unfair prices, when facing an interaction of two values – protection of small and medial companies and free market. When adjudicating this problem rulings of competent institutions of European Union and of some member states are analysed; propositions of well known european and american scholars of law and economics are also under consideration in this paper. An author comes to a conclusion that a common per se legal standart should be used in all excessive pricing cases. When assessing predation, a price below reasonably anticipated average variable costs should be conclusively presumed unlawful. Article 82 of the EC Treaty prohibits abuse by one or more undertakings of a dominant position by imposing unfair prices. Competition act of the Republic of Lithuania has an adequate rule. In any case, related with this prohibition, two elements are of first importance – evidence of dominant position and testimony of abuse of that position. Therefore fundamental discomfort of price assessment when deciding a dominant position and abuse are scrutinized and educed in this paper. A price competition is the essence of free and open competition. Rules of pricing assessment should apparently indicate hierarchy of competition law values and protect a competition, not competitors. Therefore in this paper imposition of unfair prices is analysed disclosing determinant economic grounds. Moreover, it is not only juridical yardstics, that are revealed, but also economic criterions, which are to be involved when assessing certain prices of an undertaking. It is essential to designate explicit and impartial economic-based criterions, which would be indicator for competent institutions to assess as “unfair” a price structure of an undertaking. Each case should be adjudicated not only considering specific facts, but also invoking an objective rule. These criterions should not be designed in a particular case, but should be established in acts of law. Specyfying a common per se legal standart for all excessive pricing cases would greatly simplify the application of the law, providing undertakings with a more certain legal enviroment. This per se legality standart should be applied case-by-case with the associated three exceptional cumulative circumstances, which indicate a rationale for competent institutions to intervene: the firm enjoys a (near) monopoly position in the market, which is not the result of past investments or inovations, and which is protected by insurmountable legal barriers to entry; the prices charged widely exceed its average total costs; and there is a risk that those prices may prevent the emergence of new goods and services in adjacent markets. It is only short run loss, that should be involved in assessment of predation. A price at or above reasonably anticipated average variable costs should be conclusively presumed lawful. A price below reasonably anticipated average variable costs should be conclusively presumed predatory. The less restrictive criterions of pricing assessment, the more free and open competition. Dominant undertakings not simply have a right, but they should be encouraged to compete in prices.