Does EU Economic Law Preclude National Prohibitions of Sales Below Cost?

Abstract

This article discusses whether EU economic law precludes national prohibitions of sales below cost. Following an overview of the 1993 Keck and Mithouard judgment and the 2001 and 2002 Proposals for a Sales Promotions Regulation, the article will highlight the pre-emptive effect of the 2005 Unfair Commercial Practices Directive 2005/29 on national prohibitions of sales below cost. In addition, the so-called 'convergence rule' of the 2003 Antitrust Regulation 1/2003, which inter alia does not apply to national prohibitions of sales below cost, will be discussed. Finally, this article will open up new avenues for further research on whether EU economic law should preclude national prohibitions of sales below cost.