The EC’s draft guidelines on the application of article 102 TFEU: an economic perspective

Last summer, the European Commission published draft guidelines on the enforcement of Article 102 TFEU. The stated aim of the Draft Guidelines is to reflect the EU courts' case law on exclusionary abuses in light of the extensive experience gained by the Commission in the enforcement of Article 102 TFEU.  This, argues the Commission, will help increase legal certainty, to the benefit of consumers, businesses and the national competition authorities and national courts.

In an article for Competition Policy International, RBB’s Benoît DurandBenoît DurandPartner, Adrian MajumdarAdrian MajumdarManaging Partner and Iestyn WilliamsIestyn WilliamsPartner explain that these Draft Guidelines represent a disappointing shift from the effects-based approach of the 2008 Guidance Paper, reintroducing a form-based framework for assessing exclusionary conduct by dominant firms. This change prioritises legal presumptions over evidence-based evaluations, which threatens to undermine the primary goal of competition policy of fostering competitive outcomes that benefit consumers.

Subscribers to Competition Policy International can read the full article on their website.

You can also read RBB’s response to the public consultation on the EC's draft Article 102 TFEU Guidelines here.