Is the Guidance Paper on the Commission’s Enforcement Priorities in Applying Article 102 TFEU to Abusive Exclusionary Conduct Useful?

Abstract

In December 2008, the European Commission (hereafter, the “Commission”) published a guidance paper on its enforcement priorities in applying Article 82 of the EC Treaty (now Article 102 TFEU) to abusive exclusionary conduct by dominant undertakings (hereafter, the “Guidance Paper”). This document is of a sui generis nature as it “sets out the enforcement priorities that will guide the Commission’s action in applying Article [102] to exclusionary conduct by dominant undertakings.” The Commission does not therefore state or restate the way in which Article 102 should be interpreted, a task which falls within the exclusive remit of the European Court of Justice (hereafter, the ECJ”), but explains the circumstances in which a given dominant firm’s conduct is likely to be subject to enforcement action by the Commission. Against this background, this paper seeks to answer the following question: Is the Guidance Paper useful? Considering that the Guidance Paper has generally been well received by commentators, one could be tempted to respond to this question positively, but a careful review of the document suggests that the answer may be less straightforward than would appear at first blush. To respond to the question posed above, this paper is divided into five parts. Part I explains the context leading to the adoption of the Guidance Paper. Part II briefly describes the content of the Guidance Paper, focusing on the general principles that will guide the Commission’s assessment of foreclosure rather than on its review of the various types of conduct that are likely to fall within the purview of Article 102. Part III addresses the question of whether the Guidance Paper provides sufficient guidance to dominant firms and their advisors as to whether certain conduct they may wish to pursue is compatible with Article 102. Part IV discusses whether the Commission is likely to comply with the effects-based approach promoted in its Guidance Paper or is likely to revert to a form-based approach when this better suits its enforcement objectives. Finally, Part V concludes that while the Guidance Paper gives encouraging signs that the Commission will adopt a modern, effects-based approach when defining its enforcement priorities questions remain as to the practical impact of this document for dominant firms. First, the principles contained in the Guidance Paper are subject to significant exceptions and caveats and provide no safe harbors, hence reducing the overall level of guidance provided for in this document. Second, the approach taken by the Commission in the Intel case suggests that the Commission may still be tempted to rely on the formalistic case-law of the ECJ in order to ensure that its decision does not become subject to a successful appeal.