Competitive price undercutting
As Kampfpreisunterbietung (English: predatory pricing ) refers to a pricing, which aims to oust competitors in a market, or to create insurmountable barriers to entry for competitors.
General
Low sales prices (including those below cost price ) can have a variety of commercially reasonable and not unreasonable reasons: sales crises, revitalization of a market, storage problems, etc. However, low sales prices become problematic when they are used specifically to undercut a competitor and so on to oust them from the market. The manifestations of such pricing are diverse, but what they have in common is that companies also accept considerable losses by undercutting them. Since competitive price strategies can only be successful if the company using it is significantly stronger financially than the competition and also has the prospect of recovering the losses after ousting the competition, it was sometimes disputed that companies were all too inclined to use this means.
Situation in Germany
The “competitive price” in itself is not easily objectionable from a legal point of view.
Antitrust law
Undercutting as a case group rarely occurs in German and European antitrust case law. According to Art. 102 TFEU or § 19 / § 20 GWB, it can be prohibited as a disability abuse , the addressees of the norm are market-dominant companies. The main decision here is the AKZO ruling, in which the ECJ answers the question of whether pricing is still permissible or whether competitive price undercutting exists based on the costs incurred for the company. If it falls below its variable costs (i.e. the costs that vary depending on the quantities produced), this is fundamentally abusive. If only the total average costs (fixed costs plus variable costs) are undercut, the intention to displace must also be added.
This practice is not without controversy in the literature. The costs of a company cannot always be precisely determined and are also easy to manipulate, so that some demand a stronger focus on subjective criteria.
Fairness law
A low price policy can also turn out to be inadmissible at the level of fair trading law ( Benrath petrol station case ). The central point of reference today is § 4 No. 10 UWG . Undercutting prices with the intention of crowding out is unfair here too. However, it can be permissible as a defense measure, provided that it does not affect uninvolved third parties and endanger their existence.
Web links
Individual evidence
- ↑ Further examples from Harte-Bavendamm / Henning-Bodewig / Omsels K. § 4 No. 10 Rn. 154.
- ↑ See Areeda / Turner, 88 Harvard Law Review 697 (1977).
- ↑ Immenga / Mestmäcker / Fuchs / Möschel , EU competition law. 5 ed. TFEU Art. 102 para. 233.
- ↑ ECJ, judgment of July 3rd, 1991 - C-62/86 - Slg. 1991, I-03359 - AKZO / Commission.
- ^ Dauses / Emmerich , EU commercial law. October 2010 EL 27. H. I. § 3. Art. 102 TFEU Rn. 128 mwN
- ↑ BGH, judgment of April 26th, 1990 - I ZR 71/88 - GRUR 1990, 685 - advertising price I.
