The European, Middle Eastern and African Antitrust Review 2017

EU: Abuse of Dominance

Unfulfilled promise: Is the Commission’s Guidance going the way of the dodo? The most important development in the enforcement of article 102 of the Treaty on the Functioning of the European Union (article 102) in recent years should have been the European Commission’s (the Commission’s) publication of its ‘Guidance on the Commission’s enforcement priorities in applying Article 82 of the Treaty1 to abusive exclusionary conduct by dominant undertakings’ (the Guidance Paper).2 This Guidance Paper was long awaited. The Commission had ‘modernised’ many other aspects of EU competition law in previous years and article 102 could not unreasonably have felt like the Commission’s neglected and unmodernised child. Moreover, practitioners and companies needed guidance on article 102; in particular, EU law on rebates, grounded in a handful of mostly fairly old judgments of the Court of Justice of the European Union (CJEU), diverged markedly from US law and practice.

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