Acknowledging the effects-based approach in abuse of dominance
cases, while retracting from a consumer welfare-based, rigorous
economic effects analysis.
On 27 March 2023, the European Commission
("Commission") launched a new legislative and policy
initiative which aims to replace the Commission's 2008 guidance
on its enforcement priorities in Article 102 cases involving
allegedly exclusionary conduct (the "2008 Guidance
Paper") with formal Article 102 Guidelines that would be
binding on the Commission and should, in principle, provide greater
legal certainty to market participants ("Guidelines"). In
the context of this initiative, the Commission has also made a few,
but highly relevant and immediately applicable changes to the 2008
Guidance Paper which foreshadow the approach in the forthcoming
Guidelines. A policy brief provides useful explanations for the
modifications to the 2008 Guidance and the proposed Guidelines
("Policy Brief").
