Guidelines on exclusionary abuses of dominance
Competition Law Update
August 26, 2024
The European Commission has published draft Guidelines on exclusionary abuses of dominance, reflecting the Commission's interpretation of the EU courts' case law . The Guidelines clarify the application of Article 102 of the Treaty on the Functioning of the European Union, which prohibits dominant companies from engaging in abusive practices that could exclude competitors from the market (such as predatory pricing, margin squeeze, exclusive dealing and refusal to supply).
Key highlights include:
- The purpose of competition law enforcement and the concept of consumer welfare under EU law, including in relation to exclusionary abuses.
- The main principles applicable to the assessment of single and collective dominance.
- The application of general principles to determine if a conduct by a dominant company is likely to constitute an abuse and, in particular, on the concepts of “competition on the merits” and “exclusionary effects”.
- The evidence necessary to show that a conduct is capable of producing exclusionary effects. In particular, the draft Guidelines identify: (i) categories of conduct for which it is necessary to demonstrate the capability of producing exclusionary effects; (ii) categories of conduct that have a high potential to lead to exclusionary effects, and (iii) naked restrictions, which by their very nature lead to exclusionary effects.
- The substantive legal standard to establish a conduct's capability to produce exclusionary effects.
- The analytical framework applicable to certain types of conduct by dominant companies. The draft distinguishes between: (i) conduct subject to a specific legal test set out in EU case law (i.e. exclusive dealing, tying and bundling, refusal to supply, predatory pricing and margin squeeze); and (ii) conduct not subject to a specific legal test (i.e. conditional rebates, multi-product rebates, self-preferencing and access restrictions).
- The general principles applicable to the assessment of objective justifications that the dominant company may argue.
The European Commission is seeking feedback on the draft Guidelines by 31 October 2024. A copy Guidance and public consultation website here: Competition Policy Public Consultations