European
Commission Call for Evidence on revised abuse of dominance guidance
The
European Commission is proposing to issue new guidance on the application of Article
102 TFEU to exclusionary abuses of dominance.
The Commission has issued a call for evidence to assist in its work and
amended its 2008 guidance on enforcement priorities concerning exclusionary
abuses (“2008 guidance”).
The
Commission intends that the new guidance will increase legal certainty and
bring the guidance in line with recent practice and decisions of the EU Courts.
The
Commission seeks evidence by 24 April 2023 with a view to adopting new guidance
in 2025.
Prior
to finalisation of the new guidance, the amendments to the 2008 guidance
clarify that in markets characterised by in particular network effects the
Commission may investigate practices by a dominant company which are capable of
foreclosing competitors that are not (yet) as efficient as the dominant
company.
Furthermore
the Commission may investigate cases where a dominant firm imposes unfair
access conditions to a particular input even if there is no evidence that such
input is indispensable to compete in a relevant market.
The
Commission also clarifies that margin squeeze is a separate form of abuse from
refusal to supply.
The
Commission has also published a DG Competition Policy Brief titled “A
dynamic and workable effects-based approach to Article 102 TFEU”.
The
amendments are the first major policy statement change in the area of abuse of
dominance since the Commission’s 2008 guidance. However, that document was
always an unusual statement leading to some ambivalence as to the legal
position. The Commission set out an
avowedly economics-based test for its enforcement priorities without this
actually being part of the law. It is hoped that the revised guidance as the
Commission intends will lead to a less dogmatic and strict application of the
tests on anticompetitive foreclosure and as efficient competitor.
https://ec.europa.eu/commission/presscorner/detail/en/ip_23_1911
