Expert Insights on the European Commission's draft Guidelines on Exclusionary Abuses

Our colleagues Loes van Bohemen, Dr Hasan Tahsin Apakan, Vanja Reinkowski and Wouter Hollenberg contributed to the consultation on the draft Guidelines on Exclusionary Abuses by the European Commission's DG Comp. We welcome the effort made by the Commission to release Guidelines that reflect the developments in markets, enforcement, and case law.

We observe that the draft Guidelines appear to steer away from an effects-based analysis and consumer welfare underpinning when setting out how Article 102 TFEU should be applied in future. According to the 2023 Competition Policy brief, Article 102 TFEU enforcement protects, amongst others, the competitive process and consumer welfare within the EU. The effects of the enforcement will therefore be felt on the internal market. Therefore, we believe interventions should be grounded in the economic context of the conduct observed. We would therefore welcome more economic underpinning of the various concepts in the final Guidelines.

Specifically we observe:

• Consumer welfare: the analysis of effects often seems to stop at the competitive process, and sometimes even at competitors themselves. We argue it would aid the analysis to consider the market outcomes for consumers to understand the effects and harm of the conduct better.
• Two-step test: The draft Guidelines outline a two-step test for determining abusive conduct. In our view, it would be beneficial if the Commission does not emphasise the conceptual difference between the two steps, as in many cases they are not separate analyses.
• Lack of definitions: The central concepts of competition on the merits and exclusionary effects are summarily defined in the draft Guidelines.
• AEC test, the role of market-specific factors, and less-efficient competitors: It is constructive that the relevance of the AEC test is acknowledged for an assessment on whether a conduct is liable to be abusive with regard to pricing conduct. We argue that the legal AEC-based tests might not be sufficiently embracive of the significance of market contexts and less-efficient competitors which might have negative repercussions for consumer welfare.

The draft Guidelines are available at the Commission's consultation website. Our colleague’s contribution can be downloaded below. We look forward to the final publication of the Guidelines as it will provide a helpful and harmonised overview of recent case law.