RBB response to EC's draft Article 102 TFEU Guidelines

In August 2024, the European Commission published its Draft Guidelines on exclusionary abuses of dominance (Draft Guidelines).  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 response to the public consultation, RBB has submitted a reply setting out a number of observations. 

In our view, the Draft Guidelines should balance three key objectives: (i) competitive outcomes: promoting pro-competitive behaviour while deterring anti-competitive conduct, and thereby benefiting consumers; (ii) ease of compliance and administrability: providing clear and implementable guidance to practitioners and businesses; and (iii) legal consistency: reflecting the (evolving) caselaw on exclusionary abuse. Achieving the right balance is crucial to ensure the guidelines fulfil their purpose without causing unintended negative consequences.

Our response to the Commission’s consultation on its Draft Guidelines is summarised as follows:

• The 2008 Guidance on the Commission’s enforcement priorities in applying Article 102 to exclusionary abuses (the Guidance Paper) established a sound, effects-based framework that provided a good balance between the three (sometimes conflicting) objectives of (i) competitive effects, (ii) ease of compliance and administrability, and (iii) legal certainty.

• Disappointingly, the Draft Guidelines have failed to build on that sound framework.  Rather, they have taken a step backwards in time, seeking to reassert form-based assessment over effect, an approach that fails to adequately satisfy the key objective of promoting pro-competitive behaviour while deterring anti-competitive conduct.  Attempting to draw up lists of 'good' and 'bad' forms of behaviour is misfocused because the commercial practices targeted by the Commission can both give rise to exclusionary effects and provide direct consumer benefits, even when adopted by dominant firms. 

• The Guidance Paper offered a better approach by focusing on the impact of conduct on consumers, which requires an evidence-based analysis of competitive effects.  This approach is the only way to make sense of the term 'competition on the merits', a concept that the Draft Guidelines relies on heavily.  An effects-based approach is also consistent with clarity on compliance. 

• This is not to deny a role for the identification of form-based 'aggravating factors' as part of a broader framework for assessing exclusion.  However, the use of such indicators must be set firmly within a broader framework for the assessment of competitive effects.

• We therefore urge the Commission to reconsider the Draft Guidelines.  They should move away from a focus on form-based rebuttable presumptions of abusive behaviour to providing coherent effects-based frameworks for determining when dominant firm conduct is likely to give rise to anti-competitive foreclosure.