Antitrust: Commission announces Guidelines on exclusionary abuses and amends Guidance on enforcement priorities

The European Commission has launched a Call for Evidence seeking feedback on the adoption of Guidelines on exclusionary abuses of dominance. In parallel, it has published a Communication (and Annex) amending its 2008 Guidance on enforcement priorities concerning exclusionary abuses.

Today’s package is the first major policy initiative in the area of abuse of dominance rules (Article 102 of the Treaty on the Functioning of the European Union, ‘TFEU’) since 2008. It seeks to ensure that abuse of dominance rules are clear, effective and applied vigorously to the benefit of European consumers and the economy at large.

The Guidelines on exclusionary abuses

Article 102 TFEU is one of the few areas of European competition law where no Guidelines clarify its application. However, its enforcement is key to ensuring that competition works effectively and that consumers can reap the benefits of competitive markets. The Commission has therefore published today a Call for Evidence with a view to adopt Guidelines on the application of Article 102 TFEU to exclusionary conduct.

The initiative aims at reflecting the EU courts’ case law as well as the extensive experience gained by the Commission in the enforcement of Article 102 TFEU. The Guidelines will aim at increasing legal certainty to the benefit of consumers, businesses and national competition authorities and courts.

All interested third parties have four weeks to comment on the Call for Evidence. The Commission plans to publish a draft of the Guidelines for public consultation by mid-2024, so as to adopt them in 2025. Upon their adoption, the Commission will withdraw the 2008 Guidance on enforcement priorities, as amended by today’s Communication.

More information, including on how to submit a contribution, is available here.

The Communication amending the Guidance on enforcement priorities

Until the final Guidelines are adopted, the Commission provides certain clarifications on its approach to determine whether to pursue cases of exclusionary conduct as a matter of priority.

The Commission has therefore adopted a Communication that amends specific parts of the 2008 Guidance. For example, the Communication clarifies that in markets characterised by network effects or other high barriers to entry, it may investigate practices by a dominant company which are capable of foreclosing competitors that are not (yet) as efficient as the dominant company. In addition, the Communication clarifies that it may investigate cases where a dominant firm imposes unfair access conditions to a particular input (so-called “constructive refusal to supply”), even if there is no evidence that such input is indispensable.

The amendments follow the significant developments in the case law of the EU courts on Article 102 TFEU and, accordingly, in the Commission’s enforcement practice, also taking account of market developments. It aims at enhancing transparency on the principles underpinning the Commission’s enforcement priorities in relation to abusive exclusionary conduct in line with the principle of good administration.

Background information

Article 102 of the TFEU prohibits the abuse of a dominant position that may affect trade within the EU and prevent or restrict competition. The implementation of this provision is defined in the Antitrust Regulation (Council Regulation No 1/2003), which can also be applied by the national competition authorities.

On 5 December 2008, the Commission adopted the Communication from the Commission – Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty [now Article 102 TFEU] to abusive exclusionary conduct by dominant undertakings. The 2008 Guidance on enforcement priorities set out the Commission’s enforcement priorities with regard to exclusionary abuses of dominance in order to provide greater clarity and predictability as regards the Commission’s general framework of analysis in determining whether to pursue as a matter of priority certain cases of exclusionary conduct. The 2008 Guidance on enforcement priorities contributed to promote an approach focused on the potential effects of alleged abusive conduct, through the analysis of market dynamics (the so-called “effects-based approach”).

Since the adoption of the 2008 Guidance, the Court of Justice of the European Union has delivered 32 judgments on exclusionary abuses. This rich body of case law endorsed the Commission’s effects-based approach to Article 102 TFEU and substantially clarified the scope of the rules.

The Directorate-General for Competition is also publishing today a Policy Brief titled “A dynamic and workable effects-based approach to Article 102 TFEU” which further explains the background to the launch of the Guidelines initiative as well as the changes to the 2008 Guidance on enforcement priorities introduced in the Communication.

In particular, the Policy Brief highlights how the EU Courts’ case law clarified the substantive standard to apply Article 102 TFEU and expands on specific topics, including the notion of anti-competitive foreclosure, the use of the price-cost as-efficient competitor test, the test applicable to certain types of refusal to supply and the qualification of margin squeeze as a separate category of abuse.