Excessive Pricing in Competition Law: Never say Never ?

In an article written for the European Competition Law Conference in 2003,1 we discussed the treatment of excessive pricing in the European Union, commented upon the case-law, and indicated which exceptional circumstances might in our view justify resorting to excessive pricing actions. We proposed a four-condition test: (1) high and non-transitory barriers to entry leading to a monopoly or near monopoly; (2) this (near) monopoly being due to current or past exclusive or special rights; (3) no effective means to eliminate the entry barriers; and (4) no sector regulator being competent to regulate the excessive prices. Since 2003, our paper has been followed by many others, some proposing a more lenient test for the competition authority to intervene2 while others suggesting a stricter test of intervention.3 Excessive pricing has been discussed more and more for at least two reasons. The first one is that the European Commission is reconsidering its policy on Article 82 of the EC Treaty, and although exploitative practices have not been addressed yet in its policy