The Commission’s Art.102 TFEU Guidelines: Consolidation or Creation?

Abstract

In August 2024, the Commission published its revamped “Draft Guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union to abusive exclusionary conduct by dominant undertakings.” The Draft Guidelines have the potential to significantly alter the way Art.102 TFEU cases are brought and litigated in the European Union. Against this backdrop, the present paper assesses the Draft Guidelines based on two main criteria: (i) their legality and (ii) their clarity. This follows from the general objective of guidelines, which is to provide information on enforcement practice and likely litigation outcomes by reflecting the state of the art in a certain area of the law. We find that the Commission’s Draft Guidelines employ convoluted language to convey an interpretation of Art. 102 TFEU caselaw that is tenuous, at best. In this way, the Draft Guidelines not only fail to enhance predictability, but could also influence market conduct in ways that are at odds with the law’s intent. Second, we argue that while the Commission’s Draft Guidelines purport to codify the case law of the Court of Justice, they subtly-but significantly-depart from it. This is most evident in their selective reading of precedent, which reads in presumptions of illegality while reading out effects analysis, aligning with the Commission’s preferred policy stance. Ultimately, by deviating from established case law, the Draft Guidelines not only exceed the remit of soft law but are also likely to create confusion, uncertainty, and put the Commission on a collision course with the Court of Justice.