On 27 March 2023, the European Commission announced its intention to adopt Guidelines on exclusionary abuses of dominance. A Call for Evidence has been launched with a view to collecting stakeholders’ views on this initiative within the next four weeks. The Commission expects final adoption of the new Guidelines in 2025.
In the meantime – until the above-mentioned Guidelines are adopted – the Commission has amended its currently applicable 2008 Guidance on enforcement priorities concerning exclusionary abuses. The Commission thereby wishes to align its enforcement practice with the significant developments in the case law of the Court of Justice (CJEU) on Article 102 TFEU. Indeed, no less than 32 CJEU judgments on exclusionary abuses have been delivered since the adoption of the 2008 Guidance. The amended Guidance clarifies, for instance, that, in markets characterised by network effects or other high barriers to entry, the Commission may investigate practices by a dominant company which are capable of foreclosing competitors that are not (yet) as efficient as the dominant company. Furthermore, the Commission may investigate cases where a dominant firm imposes unfair access conditions for a particular input (so-called “constructive refusal to supply”), even if there is no evidence that the input is indispensable.