Price-cost analysis of retroactive rebates: One clarification and three propositions in line with Post Danmark II

Against the background of the Post Danmark II judgement, this article by Lars Wiethaus clarifies that the so called as-efficient competitor test is a specific type of price-cost test based on the dominant firm’s costs. If no as-efficient competitor can emerge for reasons pointed out by the court, the price-cost test can be based on a reasonably-efficient competitor’s (higher) costs. Hence, the article proposes that price-cost analysis remains generally relevant, the applicable cost standard being a question of the specific circumstances of a case. Second, the article proposes a relatively easy implementation of price-cost analysis. Third, being generally one tool amongst others, price-cost analysis also provides a synthesis of all ‘all the circumstances’ deemed relevant by the court. To read the article, contact the author.