EUROPEAN COMMISSION - COMMISSION ANNOUNCES GUIDELINES ON EXCLUSIONARY ABUSES AND AMENDS GUIDANCE ON ENFORCEMENT PRIORITIES

29/03/2023

The European Commission has launched a Call for Evidence to gather comments on the adoption of Guidelines on exclusionary abuses of dominance. In parallel, it has issued a Communication (and Annex) updating its 2008 Guideline on enforcement priorities for exclusionary abuses. The package announced on 27 March 2023, is the first significant policy move since 2008 in the area of abuse of dominance laws (Article 102 of the TFEU). Article 102 TFEU is one of the few areas of European competition law where no Guidelines define its applicability.

The Commission stated that since 2008, the EU Courts have delivered 32 judgments on the exclusionary abuses framework, as well as decisions of the competition authorities of the Member States, all of which have developed the case law in favor of the effects-based enforcement of TFEU 102. It is also stated that, unlike other competition law areas, the Commission has no guidelines on applying Article 102 TFEU; the Commission only published guidelines on its enforcement priorities in the area of exclusionary abuses in 2008, which does not constitute a statement of law, does not comment on the concept of abuse of dominant position, and only sets out the Commission's approach to the selection of cases that it intends to pursue as a priority. The new guideline is intended to increase transparency on the principles underpinning the Commission's approach and to reflect developments in the Commission's case law over time.

As a result, the Commission issued a Call for Evidence on 27 March 2023, to develop Guidelines on the applicability of Article 102 TFEU to exclusionary behavior which will be open for comments from all interested parties for four weeks. The Commission intends to provide a draft of the Guidelines for public comment by the middle of 2024, with the goal of adopting them in 2025.

Until the final Guidelines are adopted, the Commission clarifies its approach for determining whether to pursue complaints of exclusionary conduct on a priority basis. In order to revise some sections of the 2008 Guidelines, the Commission has adopted a communication. The modifications reflect substantial advances in EU court case law on Article 102 TFEU while also considering market trends. With respect to abusive exclusionary conduct, it intends to increase clarity about the values that guide the Commission's enforcement priorities following the notion of good administration. 

The Amending Communication has revised the Guidance on enforcement priorities as following, with the objective of providing stakeholders with increased transparency on the Commission’s priority setting:^[1]

• it is appropriate to clarify that the concept of ‘anti-competitive foreclosure’ refers not only to cases where the dominant undertaking’s conduct can lead to the full exclusion or marginalization of competition but also to cases where it is capable of resulting in the weakening of competition, thereby hampering the competitive structure of the market to the advantage of the dominant undertaking and to the detriment of consumers.
• it is not appropriate, as regards price-based exclusionary conduct of a dominant undertaking, to pursue as a matter of priority only conduct that may lead to the market exit or the marginalization of competitors that are as efficient as the dominant undertaking in terms of their cost structure.
• the price-cost “as-efficient competitor test” is only one of a number of methods for assessing, together with all other relevant circumstances, whether a conduct is capable of producing exclusionary effects. The Court of Justice has also clarified that the use of an ‘as efficient competitor test’ is optional and that a test of that nature may be inappropriate depending on the type of practice or the relevant market dynamics.
• it is important to distinguish situations of outright refusal to supply from situations where the dominant company makes access subject to unfair conditions (“constructive refusal to supply”). In situations of constructive refusal to supply, it is not appropriate to pursue as a matter of priority only cases concerning the provision of an indispensable input or the access to an essential facility.
• it is not appropriate to pursue as a matter of priority margin squeeze cases only where those cases involve a product or service that is objectively necessary to be able to compete effectively on the downstream market.

1  Annex to the Communication from the Commission 27.03.2023

(European Commission – 27.03.2023)

 

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