European Union: Issued ECN Statement on European Commission’s Guidelines on Abusive Exclusionary Conduct by Dominant Undertakings

On 2 September 2024, the European Competition Network (ECN) issued a statement on the European Commission's Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings. According to the ECN, the Guidelines, while not legally binding on National Competition Authorities, potentially enhance legal certainty and promote a coherent enforcement strategy against exclusionary practices that distort competition. The Guidelines outline various behaviours considered as exclusionary abuse and provide a framework for demonstrating such effects using qualitative and quantitative tools, in accordance with EU Courts' case law. The ECN agrees with the draft Guidelines' interpretation of EU Courts' case law, especially regarding the use of legal presumptions for certain types of conduct that are likely to produce exclusionary effects.