EU: ARTICLE 19 leads call for stronger EU guidelines against abusive practices by dominant companies

ARTICLE 19 led a coalition of civil society organisations in responding to the European Commission's consultationon draft antitrust Guidelines for exclusionary abuses of dominance. While we welcome these necessary and urgent Guidelines in the face of years of insufficient enforcement, we argue that they could go further in tackling the root causes of the underenforcement.

The draft Guidelines on exclusionary abuses of dominance (the Guidelines) will replace the 2008 guidance on enforcement prioritiesand clarify the application of Article 102 of the Treaty on the Functioning of the European Union (TFEU). Article 102 prohibits dominant companies from engaging in abusive behaviour, including behaviour that excludes competitors from the market or takes exploitative advantage of consumers' lack of choice.

In the submission, ARTICLE 19 first takes account of the main shortcomings in the enforcement of Article 102 TFEU in recent years before analysing whether the Draft Guidelines help address them.

We argue that:

1. The Guidelines are an opportunity to expand on the historically misguided focus on narrowly defined consumer welfare. Regulators have historically taken a limited approach to welfare instead of considering broader and mutually reinforcing goals enabled by healthy competition. We believe that the Guidelines should directly include key references to plurality and democracy and recommend greater attention to other goals like sustainability and privacy protection.
2. The Guidelines make a commendable effort to facilitate enforcement and improve legal certainty of Article 102 TFEU. We appreciate the introduction of new tools to make enforcement possible when abuses are immediately clear by an overall assessment of the case, before an effects-based analysis is conducted. The Commission should carefully identify cases where a case-by-case basis and effects-based analysis are considered especially relevant and 'workable', which involves expanding the narrowly-defined economic approaches previously taken by the Commission.
3. The Guidelines need to broaden the range of economic effects to be considered and consider non-economic effects, too.We argue that focusing only on output and prices does not sufficiently capture the economic harm rendered by exclusionary abuses. It is crucial to broaden the range of tests and standards well beyond what traditional 'competition economics' can offer to re-affirm the multi-goal approach of EU competition law and the role it plays in promoting democracy and plurality.
4. The Guidelines must incorporate sufficient flexibility to remain forward-looking.We urge the Commission to accommodate dynamic interpretations of competition law in the Guidelines. Further, the Commission should commit to regularly reviewing the Guidelines to keep them relevant as business practices and judicial standards evolve.

Read the full submission