Such behaviour is banned under Article 102 of the Treaty on the Functioning of the European Union (TFEU) — the only area of European competition law where no guidelines currently clarify its application.

The draft guidelines published yesterday are based on CJEU case law and are intended to help increase legal certainty to the benefit of consumers and businesses, as well as national competition authorities and courts.

The issues covered by the guidelines include:

• the purpose of competition law enforcement and the concept of consumer welfare under EU law, including in relation to exclusionary abuses;
• the main principles applicable to the assessment of single and collective dominance;
• the application of general principles to determine if a conduct by a dominant company is likely to constitute an abuse and, in particular, on the concepts of “competition on the merits” and “exclusionary effects”;
• the evidence necessary to show that a conduct is capable of producing exclusionary effects, including identifying (i) categories of conduct for which it is necessary to demonstrate the capability of producing exclusionary effects; (ii) categories of conduct that have a high potential to lead to exclusionary effects, and (iii) naked restrictions, which by their very nature lead to exclusionary effects;
• the substantive legal standard to establish a conduct’s capability to produce exclusionary effects;
• the analytical framework applicable to certain types of conduct by dominant companies, distinguishing between (i) conduct subject to a specific legal test set out in EU case law (i.e. exclusive dealing, tying and bundling, refusal to supply, predatory pricing and margin squeeze); and (ii) conduct not subject to a specific legal test (i.e. conditional rebates, multi-product rebates, self-preferencing and access restrictions); and
• the general principles applicable to the assessment of objective justifications that the dominant company may argue.

Interested parties can submit comments on the draft guidelines until 31 October 2024, with the Commission aiming to finalise the draft “in the course of 2025”.

Margrethe Vestager, executive vice-president in charge of competition policy, said: “Exclusionary abuses harm both businesses and consumers. They lead to higher prices, less innovation and poorer quality of goods and services. So the rules of the game need to be clear for our intervention against such abuses to be effective.

“Our draft guidelines seek to present a predictable, coherent and workable framework to assess abusive conduct. They reflect our interpretation of the EU case law and the precious experience gained through the enforcement of abuse rules. We encourage all interested parties to share their views.”