Predatory Pricing Under Article 82 and the Recoupment Test: Do Not Go Gentle into that Good Night

Abstract

In France Telecom v. Commission, the Advocate-General proposed incorporating the “recoupment test” under article 82. It is submitted that the current understanding that evidence of likelihood of recoupment is not a necessary condition under Article 82 EC is correct. A recoupment requirement corresponds to per se legality of price predation, even when prices are below average variable cost.