Commission Seeks Your Voice: Draft Antitrust Guidelines on Exclusionary Abuses

In a significant move towards shaping fairer and more competitive markets, the Commission has unveiled its draft Guidelines addressing abuses of dominance under antitrust law. This step marks a crucial development ensuring more clarity in the enforcement of Article 102 of the TFEU by grounding the guidelines in established EU case-law on exclusionary abuses.

Background

In response to changing market dynamics and recent developments in EU case-law, the Commission has begun the process of drafting new guidelines on exclusionary abuses with a Call for Evidence on 27 March 2023. The insights gathered from this initiative have been instrumental in crafting the draft Guidelines which are intended to reflect the evolving case-law of the EU courts on exclusionary abuses.

Who Are They Addressed to?

All citizens, organizations and public authorities within the EU are invited to lend their voices to this consultation. Specific and considerable interest is taken in hearing from companies thriving across every sector, national authorities upholding competition law, business associations, scholars and legal professionals with expertise in the EU competition law, as well as economic consultancies and consumer advocacy groups. Your insights will help shape the future of fair competition.

Key Areas of Focus

The draft Guidelines offer comprehensive guidance on addressing exclusionary abuses by dominant companies. Key aspects covered include:

• Purpose of Competition Law: Explains the role of competition law enforcement and the concept of consumer welfare under the EU law, particularly in the context of exclusionary abuses.
• Principles of Dominance: Outline the principles for assessing both single and collective dominance in the market.
• Assessment of Conduct: Provides a framework for evaluating whether a dominant company’s behaviour constitutes an abuse, focusing on “competition on the merits” and “exclusionary effects”.
• Evidence Requirements: Specify the evidence needed to demonstrate that a type of conduct is likely to produce exclusionary effects. They categorize conduct into that requiring proof of exclusionary potential, that with high exclusionary risk and that inherently leading to exclusionary effects.
• Legal Standards: Detail the substantive legal norms for proving the capability of a type of conduct to cause exclusionary effects.

In conclusion, the Guidelines are designed to ensure consistent application of Article 102 of the TFEU by all European states’ competition authorities and courts, and, therefore, stakeholder input is crucial for addressing the issues identified. As the global marketplace has been evolving at an unprecedented pace, with dominant players increasingly shaping the economic landscape, these Guidelines seek to provide clarity and consistency in tackling exclusionary abuses, thereby safeguarding fair competition.

This piece of information is presented by the attorneys at law of Zamfirescu Racoți Vasile & Partners.