Unmasking excessive pricing: evolution of EU law on excessive pricing from United Brands to Aspen

It has been argued that the test for excessive pricing set out in United Brands is vague in a number of aspects and subsequent judgments of the EU courts have not provided much clarity on the matter. This article examines the evolution of the EU case law on excessive pricing for the last four decades including the most recent excessive pricing case investigated by the European Commission in the Aspen case. In particular, the article discusses the important question of what constitutes an excessive price that is “unfair in itself” and the question of how economic value is to be assessed. The article concludes that, although the abuse of unfair excessive pricing is likely to remain a difficult area for regulators to handle, the Commission’s commitment decision in Aspen, despite the fact that it cannot change or replace judicial decisions, provides very important clarification of the legal test for excessive pricing.