New EU Dominance Guidelines Target Rebates, Self-Preferencing And Digital Platforms

Executive Summary

• What’s new: The European Commission’s revised guidelines on abuses of dominance mark a return to formalism. Retreating from the economics-driven “as-efficient-competitor” test, they introduce presumptions of harm, a sliding scale of enforcement and per se abuses. There is a clear focus on digital and data-driven markets and a codifying of recent enforcement practices and European courts’ case law.
• Why it matters: Companies should be aware of the shift in the evidential balance intended to make it easier for the EC to establish infringements through presumptions of harm. In particular, companies should consider whether their pricing and rebate practices fall within the EC’s categories of presumptively illegal conduct where the EC states it will generally not accept cost-based defences. In the digital sector, companies should consider reviewing practices potentially subject to stricter standards, such as distributing suites of software via digital platforms,