In brief

An important policy debate is underway on how EU competition law should apply to exclusionary conduct by dominant undertakings under Article 102 TFEU, against a backdrop of geopolitical tensions on antitrust enforcement, and an urgent need to simplify the regulatory environment and boost Europe’s competitiveness.

In August 2024, the Commission issued a set of draft guidelines for public consultation. These were broadly criticised as rowing back on the economics based approach enshrined in earlier guidance and case law, giving the Commission too much enforcement discretion and providing insufficient practical guidance to business. Many of these criticisms were aired at a stakeholder workshop organised by the Commission on 13 February.

It remains to be seen to what extent the Commission will heed these criticisms in the final version which is expected by the end of 2025.

Key takeaways

The draft guidelines are essentially an overview of the Commission’s own interpretation of a large body of case law from the Union Courts whose findings are not always easily reconcilable. The draft signals a move away from the economics-based approach laid out in a 2009 enforcement priority guide that the Union Courts have in the meantime broadly endorsed. The proposed guidelines give the Commission maximum prosecutorial discretion, provide very little practical guidance in reality, and place a heavy burden on companies to justify their conduct such that they risk chilling much normal competitive conduct. It is understandable that the authorities want to be able to keep up with the fast pace of market and technological changes, but the proposed approach would come at the cost of increased legal uncertainty.

Reaction to the draft guidelines has been broadly critical. On 13 February 2025, the European Commission held a full-day stakeholder workshop to discuss specific questions arising from its proposed approach. At the workshop, the business community was broadly aligned: more clarity and practical guidance are required to facilitate compliance without imposing unrealistic and asymmetric evidentiary burdens on companies while broadly safeguarding their freedom to operate.

Academics may argue that the complexity of the rules only hampers dominant companies that are, after all, under a “special responsibility” not to engage in conduct that impairs effective competition. But there are at least two problems with this:

1. The authorities have proven to be agile in defining markets as narrowly as required in order to find abuse (not to mention that the draft guidelines threaten to reduce the “soft” safe harbour presumption of non-dominance from the long-standing 40% market share level to as low as 10%!).
2. The guidelines are of broad application including by national competition authorities across Europe, and they also influence competition policy and enforcement priorities well beyond Europe’s borders.

So it is imperative that the EU guidelines set clear rules based on coherent principles that are comprehensible and broadly intuitive to business executives taking every day commercial decisions. Let’s hope the workshop encourages a paradigm shift so that the final guidelines, scheduled for adoption by year end, are more pragmatic and workable. In light of the business significance of the topic and the broader EU competitiveness agenda, it would be appropriate for the Commission to conduct a further round of public consultation on another iteration of the draft guidelines to ensure that the final product strikes the right balance.

A robust competition law regime can simultaneously protect consumer interests and drive growth and investment; the former need not come at the cost of the latter.

The graph is a summary of the key issues at stake without getting into the details of how the Commission is proposing to tackle specific categories of conduct. For more detail, read the Baker McKenzie response to the public consultation here 2024 article 102 guidelines – European Commission drafted with excellent input from BRG economists, Dr. Xavier Boutin and Dr. Aleksandra Boutin.

In a nutshell…