The Commission on Velvet: Why it Might Not Issue Article 82 Guidelines Any Time Soon

Abstract

In the second quarter of 2008, many wondered: is the European Commission ever going to issue some sort of “dominance” guidelines? The fact was that, since it released a Discussion Paper two years before, a lot had happened on the dominance front. In particular, the European Court of Justice (ECJ) and the European Court of First Instance (CFI) (and together the “EC Courts”) had released five important judgments, dealing with many of the issues addressed in the Discussion Paper (and more). In all those cases, the EC Courts sided with the Commission. More importantly, they at times ratified the approach advocated in the Discussion Paper — which contained some sections clearly drafted with pending cases in mind — and in other places resorted to loose language that went even beyond the positions advocated in the Discussion Paper. This short note reviewed the case law of the EC Courts and explained why it put the Commission in such a comfortable position that it might actual withheld the publication of any binding guidelines. But then a few months after, in February 2009, it did release policy orientations on exclusionary conduct…reflecting largely the EC Courts case law, even if in reasoned and sophisticated manner.