On Monday 27 March, the European Commission launched a call for evidence, to obtain feedback on the adoption of guidelines on exclusionary abuses of dominance. In parallel, it published a communication amending its 2008 guidance on enforcement priorities concerning exclusionary abuses.
The 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) since 2008. It aims to ensure that the rules on abuse of dominance are clear, effective and vigorously enforced in the interests of European consumers and the economy as a whole.
The Commission has published a call for evidence (https://aeur.eu/f/621 ) with a view to adopting guidelines on the application of Article 102 TFEU to exclusionary practices. This initiative aims to reflect the case law of the EU courts as well as the extensive experience gained by the Commission in applying Article 102 TFEU. The guidelines aim to increase legal certainty for the benefit of consumers, businesses and national competition authorities and courts. All interested third parties have four weeks to comment on the call for papers. The Commission plans to publish draft guidelines for public consultation by mid-2024, with a view to adopting them in 2025. Upon adoption, the Commission will withdraw the 2008 guidelines on enforcement priorities, as amended by the Communication.
Communication. Pending the adoption of the final guidelines, the Commission is providing some clarification of its approach to determining whether cases of exclusionary behaviour should be pursued as a matter of priority.
The communication clarifies that in markets characterised by network effects or other high barriers to entry, it may investigate practices of a dominant undertaking that may foreclose competitors that are not (yet) as efficient as the dominant undertaking. In addition, the text specifies that it may investigate cases where a dominant undertaking imposes unfair access conditions.
The amendments follow the development of the case law of the EU courts on Article 102 TFEU and, consequently, of the Commission’s enforcement practice, while taking into account market developments. They aim to improve the transparency of the principles underlying the Commission’s enforcement priorities with regard to abusive exclusionary practices, in line with the principle of good administration.
Link to the communication: https://aeur.eu/f/622 (Original version in French by Lionel Changeur)