Access to European Union law
<a href="https://eur-lex.europa.eu/content/help/eurlex-content/experimental-features.html" target="_blank">More about the experimental features corner</a>
Choose the experimental features you want to try
EUR-Lex
Access to European Union law

This document is an excerpt from the EUR-Lex website

You are here
Use quotation marks to search for an "exact phrase". Append an asterisk (*) to a search term to find variations of it (transp*, 32019R*). Use a question mark (?) instead of a single character in your search term to find variations of it (ca?e finds case, cane, care).
Search tips
Need more search options? Use the Advanced search

Summaries of EU Legislation

Commission guidance on enforcement priorities related to abusive exclusionary conduct by dominant undertakings

SUMMARY OF:

Guidance on the Commission’s enforcement priorities in applying Article 102 of the Treaty on the Functioning of the European Union (TFEU) to abusive exclusionary conduct by dominant undertakings

WHAT IS THE AIM OF THE COMMUNICATION?

The guidance aims to provide greater legal certainty and help foster consistent enforcement between the European Commission, national competition authorities and national courts of the European Union’s (EU) rules on the abuse of dominant position.

KEY POINTS

Abuse of a dominant position

  • Article 102 of the Treaty on the Functioning of the EU prohibits abuses of dominant position.
  • The law plays a key role in disciplining the conduct of dominant companies.
  • Such companies have a special responsibility not to allow their behaviour to impair genuine, undistorted competition in the internal market.

2008 Guidance

  • In its 2008 guidance, the Commission set out its enforcement priorities with regard to exclusionary abuses of dominance.
  • These sought to provide greater clarity and predictability when determining whether to pursue as a matter of priority certain cases of exclusionary conduct.
  • They promote an approach focused on the potential effects of alleged abusive conduct, through the analysis of market dynamics (the effects-based approach).
  • The Guidance cover a number of specific exclusionary abuses including:
    • exclusive dealing;
    • tying1 and bundling2;
    • predation;
    • refusal to supply; and
    • margin squeeze3.
  • Dominance is considered unlikely where the company has less than a 40 % market share.
  • They set a requirement for cogent and convincing evidence that any given exclusionary conduct is likely to lead to consumer harm.
    • Factors in assessing such anti-competitive foreclosure include the dominant firm’s position, market conditions and competitors' positions.
  • For price-based exclusionary conduct, the Commission would only intervene where it is likely to hamper competition from competitors who are as efficient as the dominant firm – the efficient competitor test.
  • The defences of objective necessity and efficiencies are formally recognised.

2023 amendments

To reflect changes brought about by market developments and the evolution of the case law of the EU courts, the Commission published amended guidance on its enforcement priorities in 2023. The amendments lower the threshold for identifying abusive conduct, in particular:

  • by considering a dominant company’s actions abusive if they adversely impact an effective competitive structure even without proving the actual exclusion of competitors;
  • by placing less emphasis on the efficient competitor test when assessing potential abuses like refusals to supply and margin squeezes. The Commission will take into consideration a wider range of factors when assessing potential harm to competition.

As part of this process, in 2023, the Commission also issued a Call for Evidence seeking feedback on the adoption of Guidelines on exclusionary abuses of dominance.

BACKGROUND

For further information, see:

KEY TERMS

  1. Tying. Situations where customers that purchase one product (the tying product) are required also to purchase another product from the dominant undertaking (the tied product).
  2. Bundling. The way products are offered and priced by the dominant undertaking. In the case of pure bundling, the products are only sold jointly in fixed proportions and, in the case of mixed bundling, the products are also made available separately, but the sum of the prices when sold separately is higher than the bundled price.
  3. Margin squeeze. When a company with market power prices a product or service so that competitors cannot make a profit. This can lead to competitors being forced out of business.

MAIN DOCUMENT

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 (OJ C 45, , pp. 7–20).

last update

Top