The European Commission’s draft Article 102 Guidelines under fire: examining the substance and the roots of the criticism
Miroslava Marinova
What the paper says
On 1 August 2024, the European Commission published draft Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings, which provoked considerable criticism and raised concerns amongst commentators. The main concerns are raised about the shift away from the established effects-based approach and, in that context, particularly the downplaying of the as-efficient competitor test, and the introduction of presumptions, which may diminish legal certainty by shifting the burden of proof onto companies. This article provides a critical analysis of the draft Guidelines, evaluating their consistency with the existing legal framework and case law. It focuses on addressing the concerns expressed publicly by various stakeholders, evaluating their validity and determining whether they are fully sustainable. Whilst some concerns may have merit, this article argues that the criticisms are not entirely justified. The goal of the article is to formulate recommendations that both reflect stakeholders’ concerns and remain practical and balanced in application.
Evidence weight
Balanced mode · F 0.40 / M 0.15 / V 0.05 / R 0.40
| F · citation impact | 0.50 × 0.4 = 0.20 |
| M · momentum | 0.50 × 0.15 = 0.07 |
| V · venue signal | 0.50 × 0.05 = 0.03 |
| R · text relevance † | 0.50 × 0.4 = 0.20 |
† Text relevance is estimated at 0.50 on the detail page — for your query’s actual relevance score, open this paper from a search result.