欧盟委员会2008年公布执行指南之后,欧盟委员会和欧盟法院对忠实折扣适用欧盟竞争法时存在分歧,分歧体现为适用规则不同和行为定性不同。分歧所深藏的根本原因是,两大机构对忠实折扣的经济效果假定不同,从而出现法律推定属性不同。欧盟法院为了维持其案例法所确认的错误假定,判决推理出现不和谐之处。完善方法是欧盟法院改变错误假定。分析忠实折扣经济效果,应考虑被排斥竞争者是否具有同等效率,所涉忠实客户代表市场份额是否满足竞争者生存及相关抗辩因素。 After the European Commission promulgated its implementing guidelines in 2008, the European Commission and the EU courts disagreed about the loyalty discount applicable to the EU competition law. The disagreements are manifested in different applicable rules and qualitatively different behaviors. The root cause of the differences is that the economic effects of the two agencies on the faithful discounts are assumed to be different, resulting in different legal presumption attributes. In order to maintain the erroneous assumptions affirmed by its case law, the court ruled that there was an inconsistency. The perfect method is that the EU courts change the wrong assumptions. An analysis of the effectiveness of a faithful discount economy should consider whether the excluded competitors have the same efficiency and whether the market share of the loyal customer representatives meets the survival of competitors and the relevant defense elements.