European Commission Call for Evidence on revised abuse of dominance guidance

 

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