Presumptive or Presumptuous? The Global Antitrust Institute’s Comment on the EC’s Draft Guidelines on Exclusionary Abuse

ABSTRACT:

We identify several flaws in the European Commission's Draft Guidelines on exclusionary abuse. The Commission’s choice to ground the Draft Guidelines in EU case law on Article 102— spanning both early case law that followed a formalistic approach to the enforcement of exclusionary abuse and modern case law that follows an effects-based approach—has resulted in internal inconsistencies and confusion. We recommend that more recent CJEU judgments predominate over earlier case law in the interpretation of Article 102. The most egregious flaw in the Draft Guidelines is the presumptuous introduction of presumptions of exclusionary abuse, which would relieve the Commission of its duty to determine whether conduct has anticompetitive effects. This flies in the face of not only modern EU case law but also a standard interpretation of the very text of Article 102. We urge the Commission to return to the spirit of the effects-based approach it articulated in the 2008 Guidance Paper, which has been influential in shaping modern EU case law. In particular, we propose that the Commission explicitly accept responsibility for showing anticompetitive effects, adopt the consumer welfare standard as the unifying principle for discerning competition on the merits, and adopt the As-Efficient-Competitor standard as the unifying principle for discerning whether exclusionary conduct by a dominant undertaking is likely to be abusive.