NEWSLETTER-2017

107 COMPETITION LAW in its decision, considered a price that is excessive in relation to the economic value of the service provided as abusive. Following the Commission’s decision, excessive pricing is, theo- retically, established as abuse. However, many scholars believe that the Commission is reluctant to interfere with unfair prices 4 , and is more amenable to investigate exclusionary abuses 5 . Other decisions in which excessive prices are analyzed are the United Brands decision 6 , Bodson decision 7 , Deutsche Post decision 8 , SACEM decision 9 , Helsingborg decision 10 , and Rambus decision 11 . All of these listed cases put forth that the Commission and EU Courts evaluated excessive prices in markets where there is an entrenched dominant position; General Motors and Deutsche Post were legal mo- nopolies, Bodson and Rambus were in dominant positions and, finally, SACEM and Helsingborg were national monopolies. The exception was the United Brands case; however, the Court did not decide that there was excessive pricing 12 . It is stated that excessive prices are considered in markets where new entry and expansion was unlikely to increase as a result of high prices and profits due to strong market barriers. The recent development with regard to excessive pricing consid- ers drug prices in the pharmaceutical industry. On 15 May 2017, the Commission opened an investigation into Aspen Pharmacare (“As- pen”) over claims of excessive pricing; this is the first time that the Commission ever questioned a drug company concerning unjustified 4 Ünal, p. 44. 5 OECD Policy Roundtables, Excessive prices, 2011; http://www.oecd.org/compe- tition/abuse/49604207.pdf 6 United Brands Co. v Commission Case C-27/76, 1978. 7 Corinne Bodson v SA Pompes funèbres des régions libérées Case 30/87, 1988. 8 COMP/36.915 – Deutsche Post AG – Interception of cross-border mail, 2001. 9 F. Lucazeau v Societé des Auteurs, Compositeurs et Editeurs de Musique Cases 110/88, 241/88 & 242/88, 1989. 10 COMP/36.568 – Scandlines Sverige AB v Port of Helsingborg, 2004. 11 COMP/38.636 – Rambus; http://ec.europa.eu/competition/antitrust/cases/dec_ docs/38636/38636_1203_1.pdf. 12 For more detailed information see, OECD Policy Roundtables, Excessive prices, 2011, par. 18-42; http://www.oecd.org/competition/abuse/49604207.pdf.