The European Commission’s 2024 draft guidelines on exclusionary abuses have generated significant debate across the competition community, particularly around the proposed use of rebuttable presumptions when assessing anti‑competitive effects.
In a recent article published by Concurrences, RBB’s Tristan Lécuyer
Tristan LécuyerPartner and Trent Pieterse
Trent PieterseAssociate Principal examine this issue from an economic perspective. While well‑specified presumptions could, in principle, lower enforcement costs, improve effectiveness and aid legal compliance, they explain why the Draft Guidelines are unlikely to achieve these aims:
(1) At best, the Draft Guidelines’ presumptions are likely to be of limited practical significance for Article 102 enforcement. Even with rebuttable presumptions, it is unlikely that the Commission could avoid a comprehensive, effects‑based assessment of anti‑competitive effects (as indicated by recent ECJ judgments such as Intel II). It is also unclear whether the case law supports the use of such presumptions, undermining the Commission’s stated objective of greater legal certainty.
(2) At worst, the presumptions pose significant risks to competition and consumer welfare. The types of conduct covered have well‑established pro‑competitive justifications. By tipping the balance towards anti‑competitive effects at the outset, the presumptions risk penalising genuinely pro‑competitive conduct and chilling competition more broadly.
(3) Finally, where such presumptions are retained, the article explains how the Final Guidelines should mitigate these risks. In particular, they should commit to a consumer‑focused theory of harm and a clear, symmetric burden of proof for firms’ rebuttal evidence, ensuring pro‑competitive effects are properly accounted for.
Subscribers to Concurrences can read the full article here.
