The NMa has rejected a complaint claiming abuse of dominance by postal company TNT by engaging in predatory pricing, tying and bundling, exclusive long-term agreements and discriminatory pricing.3
The NMa examined the predatory pricing claims on the basis of the European Commission’s guidance in applying Article 102 TFEU (ex Article 82 EC) to abusive exclusionary conduct by dominant undertakings.4 Conduct by a dominant undertaking may be considered predatory if it charges such a low price that it is deliberately incurring losses or foregoing profits in the short term, so as (likely) to foreclose one or more of its competitors with a view to strengthening or maintaining its market power, thereby causing consumer harm.
According to the European Commission’s guidance, pricing below the long-run average incremental cost (LRAIC) is normally capable of foreclosing efficient competitors from the market.5 Since TNT at least covers its LRAIC with its mail delivery services, the NMa considered predatory pricing unlikely. In addition, the NMa found insufficient evidence of the other abusive conduct allegations to initiate an in-depth investigation. As a result, the NMa dismissed the complaint without needing to decide on whether TNT holds a dominant position.