Connect Europe position on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings
Connect Europe welcomes the opportunity to comment on the Draft Guidelines on the Application of Art. 102 TFEU. We appreciate the aim of the Commission to reflect the EU courts case law on exclusionary abuses in order to provide more legal certainty to the benefit of businesses and consumers. Regrettably, we believe that the current draft of the Guidelines does not achieve either of these goals, it does not reflect the case law accurately nor does it enhance legal certainty for businesses.
In its attempt to codify EU courts judgments on exclusionary abuses, the Commission has adopted a quite selective approach and, in some cases, has even introduced new concepts. In particular, the attempt to move towards a more formalistic approach with legal presumptions is not supported by the EU courts case law. Below, we further elaborate on how the precedents, including the latest Intel decision, are clear in stating that the burden to prove an abusive exclusionary conduct lies with the Commission. Beyond that, it seems to be contrary to what the Commission has announced in in its communication from 27.03.2023 on the amendment of the Guidance Paper, namely that it wanted to stick to the effect-based approach adopted by the Union Courts over the years.
Furthermore, very specific cases and conducts with exceptional or particular circumstances should not be turned into a general rule. This is especially important given that the Guidelines are meant to provide guidance to national competition authorities and national courts, who may be not familiar with the underlying cases. In addition, the Guidelines should bring together established case law on the various subjects, for reasons of transparency, legal certainty and predictability of decisions. They should, therefore, refer to the highest ruling available on a case and on questions which are recurrent. Otherwise, this would lead to an overly broad application of Art. 102 TFEU, generalisation of isolated cases and in turn would make the self-assessment for businesses more burdensome.
Overall, the presumptive approach, the broadening of the scope of fundamental concepts or, conversely, downplaying their importance, the lowering of the evidentiary threshold for the Commission, the lack of focus on consumer harm in the Draft Guidelines would result in a too wide application of Art. 102 TFEU. The Commission recognised the very important role of Art. 102 TFEU for society, however, the easier workability and accelerated enforcement which the Commission aims to obtain with these Draft Guidelines would not be achieved as they go beyond established case law and in their current shape would stifle innovation and economic initiative for dominant companies
There must be a calibrated approach by carefully balancing the different challenges. The current proposal will lead to over-enforcement and a bias towards type 1 errors, increase legal uncertainty for dominant undertakings, and heighten the compliance burden, which would ultimately have a chilling effect on EU competitiveness. Furthermore, this approach would likely result in a rise in opportunistic complaints, leading to lengthy and burdensome proceedings. Moreover, since it lacks endorsement from case law, the Commission's decisions are likely to be challenged in court, resulting in prolonged judicial reviews.
In light of the above, Connect Europe believes that in order to achieve a clear and accurate overview of the state of case law on the appli cation of Art. 102 TFEU and thereby provide legal certainty to all stakeholders the Draft Guidelines need to fundamentally change. Below, Connect Europe has provided some detailed observations, which we kindly ask the Commission to consider in such a fundamental revision.
We elaborate on our recommendations in the paper. For questions and clarifications regarding this submission, please contact Benedict Gromann, Public Policy Manager (gromann@connecteurope.org).
