The European Commission is in the process of reforming guidelines that clarify the assessment of the abuse of a dominant market position. The EU Competition Network (ECN) published a joint statement on the draft guidelines.
On 1 August 2014, the Commission published a draft guidelines on abusive exclusionary conduct by dominant undertakings. The FCCA has contributed to the preparation of the draft guidelines through the EU Competition Network (ECN). On 2 September 2024, the ECN published a joint statement on the Commission’s initiative.
ECN states that it welcomes the European Commission’s initiative to adopt guidelines and considers the draft Guidelines as an important step in the direction of a workable effectsbased approach to Article 102 of Treaty on the Functioning of the European Union (TFEU).
The enforcement of Article 102 TFEU on abuses of dominant market positions plays a key role in ensuring that competition works effectively, that companies enjoy a level playing field and that consumers benefit from competition. The Guidelines are based on the case law of the EU Courts and the Commission and aim to increase predictability in the application of competition rules.
Companies with dominant market positions have a special responsibility to operate in the market in a way that does not distort effective competition. According to the general principles of the Draft Guidelines, abuse of a dominant position is a conduct that deviates from normal merit-based competition and is capable to have exclusionary effects.
The draft provides guidance on the analytical framework applicable to certain types of conduct by dominant companies:
- conducts 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
- conduct not subject to a specific legal test (i.e. conditional rebates, multi-product rebates, self-preferencing and access restrictions).
Even if the conduct is found to be abusive, a dominant undertaking can avoid sanctions if it can show that its conduct is objectively justified or that the efficiencies it generates outweigh or compensate for the negative effects.
Comments on the draft guidelines can be made by 31 October 2024. The final guidelines are expected to be issued by the end of 2025.