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Competing Too Well: Europe’s New Guide to Dominance
Brussels has finally given Article 102 an instruction manual. Issued Sept. 3, the European Commission’s first comprehensive Guidelines on exclusionary abuses of dominance under the Treaty on the Functioning of the European Union (TFEU) replace a legal scavenger hunt with a single framework. The catch is that the manual still gives the Commission considerable room to decide when vigorous competition has become unlawful exclusion.
Until now, businesses, national authorities, and courts had to piece together the governing standards from treaty text, sporadic Commission decisions, and a growing body of judicial opinions. The Guidelines bring the rules on dominance, exclusionary effects, specific practices, and objective justifications into one framework. They also recognize that firms compete on quality, choice, and innovation, as well as price.
But the Guidelines do not mark a decisive return to disciplined, effects-based enforcement. They allow the Commission, in some cases, to dispense with a counterfactual, assess nonpricing conduct without a price-cost test, infer exclusion from conduct merely capable of producing it, and use presumptions to shift the evidentiary burden. The final text narrows some of the original draft version’s most aggressive express presumptions, as Global Competition Review has noted, but leaves ample room to expand liability later.
The Guidelines thus do more to organize and clarify Article 102 enforcement than to solve its central economic problem. The law remains highly receptive to precautionary intervention against successful firms, even when the challenged conduct may bring consumers substantial benefits alongside possible exclusionary risks.
No one seriously disputes that dominant firms can harm competition. The harder question—and the one these Guidelines do not settle—is whether the law can distinguish that harm from the ordinary process by which firms achieve dominance through investment, integration, innovation, and better service.