The European Commission’s guidance on Article 102 TFEU: Upgrade required?

This Global Competition Review article discusses recent decisions by the European Commission (EC), as well as judgments and preliminary references by the Court of Justice of the European Union (CJEU) relating to Article 102 of the Treaty on the Functioning of the European Union (TFEU). Based on recent decisional practice and the evolving concept of exclusion in Europe, the EC’s 2009 Guidance on Article 102 TFEU (EC’s Guidance) may require updating.

Article 102 TFEU governs practices by companies able to act independently of, and with a degree of immunity from, normal competitive market conditions. It prohibits not only those practices that directly cause harm to consumers (e.g. exploitative abuses), but also practices that cause consumer harm through their impact on competition (e.g. exclusionary practices).

The majority of cases investigated by the EC in recent years under Article 102 TFEU, and reviewed by the CJEU on appeal, relate to alleged anticompetitive conduct not reflected in the EC’s Guidance. These include:

• Self-preferencing: where a vertically integrated dominant company uses its own asset, such as its platform, to favour the positioning or sale of its own goods or services at the expense of rivals.
• Data leveraging: where a dominant company restricts access to data that it holds as a result of its inherent dominance in the market, to benefit its own products or services at the exclusion of its rivals.
• Naked restrictions: where a dominant company engages in conduct with the sole purpose of excluding its rivals.
• Excessive pricing: where a dominant company imposes excessive prices on its customers.

In addition, national competition agencies in Europe investigated cases relating to anticompetitive disparagement by a dominant company – conduct also not addressed in the EC Guidance. The prescribed conduct and potential consumer harm of these evolved forms of anticompetitive abuses are not adequately addressed in the EC’s Guidance. In addition, traditional forms of anticompetitive practices that are referenced in the EC’s Guidance, such as fidelity-inducing loyalty rebates, may require revision in light of the CJEU’s case law in Intel v Commission 2017 and Intel v Commission 2022.

Please follow this link to the full article: Europe, Middle East And Africa Antitrust Review 2023.