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In August 2024 the European Commission published draft guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) to abusive exclusionary conduct by dominant undertakings.

Rather than the current guidance on enforcement priorities, this document has taken the shape of guidelines proper, similar to those found in respect of Article 101 TFEU. The intention is therefore that undertakings, legal counsel and competition authorities follow the doctrine laid out in the eventual guidelines when applying Article 102 TFEU to conduct by dominant undertakings that may be exclusionary in nature.

Although the draft cites a number of recent case of the Court of Justice of the European Union, it has taken the approach of dividing potential abuses in three distinct groups– (i) conduct that requires a full assessment as to whether they are anti-competitive, (ii) conduct that is presumed abusive (such as exclusive dealing, margin squeeze, refusal to supply, tying and bundling and predatory pricing) and (iii) conduct that is a “naked restriction” of competition, and effectively therefore per se abusive.

The European Commission is inviting comments on the draft guidelines by 31 October 2024, and is planning on issuing the final guidelines in 2025.

This document does not purport to give legal, financial or tax advice. Should you require further information or legal assistance, please do not hesitate to contact Dr Annalies Muscat.

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