5 May 2023

RBB response to the EC’s updated Article 102 TFEU Guidance and Policy Brief

In March, the European Commission amended its Article 102 Guidance and initiated a process of replacing this with Guidelines. At the same time, it published a companion Competition Policy Brief commenting on the anticipated focus for future enforcement.

Whilst we support the Commission’s desire to maintain an effects-based approach, the “dynamic and workable effects-based approach” set out in the Policy Brief does not currently meet that objective due to the watering down of certain effects-based principles.

Our submission elaborates on these concerns. We believe that the forthcoming Guidelines should make clear that the Commission will primarily pursue cases where harmful effects are most likely to arise. In doing so, it should set out not only where intervention is possible, but also where it is most likely to occur and where intervention is unlikely to be warranted. This would reduce the risk that dominant firms (and firms without substantial market power that fear being found to be dominant) refrain from procompetitive behaviour.

Our submission:

provides our definition of a true effects-based approach and why adhering to it matters from a policy perspective;

discusses the importance of retaining the as efficient competitor principle and warns that a “not-(yet)-AEC” standard should be applied only in clearly defined special cases;

sets out why the price-cost test associated with the AEC principle remains valuable and urges the Commission not to downplay its importance in its forthcoming Guidelines; and

explains how the Policy Brief advocates an inconsistent approach to the application of the Bronner Criteria in access cases, notably as regards the indispensability criterion (and what we shall call the “limited duty to supply principle”).

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