Guidelines on exclusionary abuses of dominance

Key highlights include:

• The purpose of competition law enforcement and the concept of consumer welfare under EU law, including in relation to exclusionary abuses.
• The main principles applicable to the assessment of single and collective dominance.
• The application of general principles to determine if a conduct by a dominant company is likely to constitute an abuse and, in particular, on the concepts of “competition on the merits” and “exclusionary effects”.
• The evidence necessary to show that a conduct is capable of producing exclusionary effects. In particular, the draft Guidelines identify: (i) categories of conduct for which it is necessary to demonstrate the capability of producing exclusionary effects; (ii) categories of conduct that have a high potential  to lead to exclusionary effects, and (iii) naked restrictions, which by their very nature lead to exclusionary effects.
• The substantive legal standard to establish a conduct's capability to produce exclusionary effects.
• The analytical framework applicable to certain types of conduct by dominant companies. The draft distinguishes between: (i) conduct subject to a specific legal test  set out in EU case law (i.e. exclusive dealing, tying and bundling, refusal to supply, predatory pricing and margin squeeze); and (ii) conduct not subject to a specific legal test (i.e. conditional rebates, multi-product rebates, self-preferencing and access restrictions).
• The general principles applicable to the assessment of objective justifications that the dominant company may argue.

The European Commission is seeking feedback on the draft Guidelines by 31 October 2024. A copy Guidance and public consultation website here: Competition Policy Public Consultations