J. Latała: New EC Guidelines on the Abuse of a Dominant Position

After three years of consultations, the European Commission has adopted new guidelines on the application of Article 102 TFEU regarding exclusionary practices by dominant firms. The document systematizes the case law of the CJEU and the Commission’s decision-making practice, describing, among other things:

• general principles for assessing a dominant position;
• the principles for assessing whether the conduct of dominant undertakings restricts effective competition;
• the principles for determining whether specific types of conduct by dominant undertakings restrict effective competition;
• the principles for assessing objective factors that may justify or offset the effects of conduct that restricts effective competition.

The guidelines are intended to increase legal certainty and predictability for companies when self-assessing their market practices, as well as to ensure consistency in the enforcement of Article 102 TFEU by national competition authorities and national courts, which will be able to refer to the guidelines as a point of reference.

The new guidelines also introduce a two-step abuse test, an expanded list of anticompetitive practices, and explicitly establish a presumption that shifts the burden of proof to the dominant firm.