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欧盟竞争法对折扣实行类型化,属于排它性类型的行为定性为本质违反竞争法,适用准本身违法规则。具有忠实引诱性质的折扣也是如此。此种形式方法的理念是以理想的完全竞争作为模型,并以完全竞争的静态效率作为衡量行为违法与否的标准,脱离了社会现实,结论必然是对忠实折扣的竞争法价值判断的歪曲。形式方法的适用保护了效率低下的竞争者,剥夺了消费者享受低价高品质商品的机会,背离了欧盟竞争法保护竞争的目标。目前欧盟竞争委员会力倡实行法律价值判断标准的经济化,以市场行为的经济效果作为法律价值判断基准,适用合理规则判断忠实折扣的法律属性。此种改朝换代的经济标准路径无疑符合当今竞争法理念,为我国反垄断法的实施提供了有益借鉴之处。
The EU competition law types of discounts, belonging to an exclusive type of behavior is essentially violated competition law, applicable to its own illegal rules. The same is true of loyalty and seduction. The idea of this formal method is based on ideal perfect competition as a model, and uses the perfectly competitive static efficiency as a criterion to judge whether the behavior is illegal or not. It departs from the social reality and the conclusion is bound to be a distorting of the faithful discounted competition law. The application of formal methods protects the inefficient competitors and deprives consumers of the opportunity to enjoy low-priced and high-quality goods, which deviates from the objective of EU competition law to protect competition. At present, the EU Competition Commission advocates the implementation of the legal value judgments of the standardization of economic behavior of the market economy as the legal value of judging the basis for the application of reasonable rules to judge the legal attributes of loyalty discounts. This economic standard path of dynastic change undoubtedly conforms to the concept of competition law today and provides a useful reference for the implementation of the anti-monopoly law in our country.