European Commission Announces Plans For New Article 102 TFEU Guidelines And Amends 2008 Guidance On Enforcement Priorities

• Jurisdiction: European Union
• Law Firm: Herbert Smith Freehills
• Subject Matter: ntitrust/Competition Law, Antitrust, EU Competition
• Author: Mr Daniel Vowden, Kyriakos Fountoukakos, Vassilena Karadakova, Abhijeet Sinha and Phoebe Hirst
• Published date: 01 May 2023

On 27 March 2023, the European Commission (Commission) announced its intention to adopt detailed new guidelines on the application of Article 102 TFEU to exclusionary conduct. The Commission explained that "Article 102 TFEU is one of the few areas of European competition law where no Guidelines clarify its application. However, its enforcement is key to ensuring that competition works effectively and that consumers can reap the benefits of competitive markets."

The only guidance relating to Article 102 TFEU dates back to 2008. This is high-level, focusing on how the Commission will prioritise conduct it chooses to investigate rather than delving into the detail of what would need to hold true for the Commission to consider a particular practice abusive. This contrasts with the approach taken in other areas, in particular Article 101 TFEU, where the Commission has issued and recently updated detailed guidance on its approach to various types of horizontal and vertical agreements. This is all the more surprising given that the fines for infringement of Article 102 TFEU are comparable to – and sometimes higher – than those imposed for Article 101 TFEU.

The evidential standard the Commission must meet to prove an infringement of Article 102 TFEU has also been the subject of extensive judicial challenge over the last 15 years, which has led to an important body of European court case law on the subject (in particular, the judgments in Intel (Case C-413/14 P and Case T-286/09 RENV), Qualcomm (Case T-235/18), Google (Android) (Case T-604/18), and Unilever (Case C-680/20)). Some officials have argued recently that the high evidential standard these judgments impose risks rendering Article 102 TFEU practically unenforceable.

Viewed in this context, it appears that the Commission is resolved to square the case law with its desire to ensure that Article 102 TFEU remains enforceable and effective. Until the final Guidelines are adopted, the Commission has: (i) made certain amendments to the 2008 Guidance, which provide some insight into the likely direction of travel; and (ii) published a Policy Brief providing further insight into the rationale for these changes. We consider and comment on the main elements in more detail below.

What effects must be proven to establish Article 102 TFEU infringement?

The Commission acknowledges that to establish an infringement of Article 102 TFEU on the basis of exclusionary conduct, some consideration of effects is required. Although the Commission has not proposed any changes to the 2008 Guidance – which generally refers to the need for such effects to be "likely" – the Policy Brief acknowledges that since then, the courts have used a number of different terms to describe the degree of probability of anti-competitive effects required to find an infringement (including "capable", "potential" and "probable").

The Commission's view is that "despite this varied terminology, the applicable legal standard endorsed by the Union Courts and applied by the Commission must be understood as being one and the same". It endorses "potential effects" as most suitable to capture the standard required. The Policy Brief expands on the Commission's interpretation of the case law in terms of what this entails in practice:

1. This is not a "simplistic or...