Article 102 prohibits abusive behaviour by companies holding a dominant position on any given market. Most abuse of dominance cases concern practices having an exclusionary effect on actual or potential competitors. The Commission adopted guidance on its enforcement priorities in the area of exclusionary conduct in 2008, promoting a so-called “effects based” approach to exclusionary abuses of dominance.
The Article 102 TFEU Package
Against the background of market developments and the evolution of the EU Court’s case law, on 27 March 2023 the Commission amended the guidance on enforcement priorities through an Amending Communication. This was done in line with the principle of good administration, to improve transparency on the principles underpinning the Commission’s prioritisation of investigations.
The Commission has also announced on the same day that it has launched the process leading to the adoption of guidelines on exclusionary abuses. The guidelines will be based on the case law of the EU Courts and the Commission practice based on it. They will lead to greater legal certainty and help foster consistent enforcement between the Commission, national competition authorities and national courts. The Commission plans to publish a draft of the guidelines for public consultation by mid-2024, with the aim of adopting them in 2025. Upon the adoption of the guidelines, the Commission will withdraw the 2008 Guidance on enforcement priorities, as amended on 27 March 2023.
In order to gather input from all interested stakeholders on the future Guidelines, the Commission published on 27 March 2023 a Call for Evidence. The responses to the Call for Evidence can be found on the Better Regulation webpage. Position papers were also sent by stakeholders in the context of the Call for Evidence. See link below:
The amendments and the publication of the Call for Evidence are complemented by a DG COMP Staff Policy Brief titled A dynamic and workable effects-based approach to Article 102 TFEU. The brief further explains the background to the launch of the guidelines initiative as well as the changes to the 2008 Guidance on enforcement priorities introduced in the Communication.
2008 Guidance on enforcement priorities
Communication from the Commission: Guidance on its enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings.
Official Journal C 45, 24.2.2009, p. 7–20
The Article 102 TFEU Package
- The Call for evidence
- Communication from the Commission: Amendments to the Communication from the Commission - Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings ("Amending Communication”) and Annex to the Amending Communication
Official Journal C/2023 116/01
- Compare version of Guidance on enforcement priorities in applying Article 82 TFEU, showing the amendments implemented by the Amending Communication
- Policy Brief“A dynamic and workable effects-based approach to Article 102 TFEU”
- Press release