From Concept to Precedent: The 2024 Draft Guidelines on Article 102

By: Kevin Coates (Covington Competition)

The European Commission published its draft guidelines on exclusionary abusive conduct by dominant firms under Article 102 TFEU (the “Draft Guidelines”) on 1 August 2024. These guidelines represent a significant departure from the 2009 Enforcement Priorities Guidance on Article 82 [now Article 102] (the “Priorities Guidance”). Whereas the Priorities Guidance focused heavily on economic concepts, the Draft Guidelines now emphasize the Commission’s interpretation of European Court rulings.

The consultation on the Draft Guidelines is open until 31 October 2024. Practical suggestions grounded in, and building upon, established case law are likely to have a stronger influence on the Commission’s final guidelines than purely economic arguments.

Similar to the Priorities Guidance, the Draft Guidelines concentrate on exclusionary conduct—behavior that benefits dominant firms by driving competitors out of the market—while largely excluding exploitative conduct, such as excessive pricing or unfair trading conditions, where a firm leverages its market power. However, in contrast to the Priorities Guidance, the Draft Guidelines acknowledge overlaps between exclusionary and exploitative behavior. They state that “principles relevant to the assessment of dominance (section 2) and the justifications based on objective necessity and efficiencies (section 5) are also relevant for the assessment of other forms of abusive conduct, such as exploitative abuses” (paragraph 11) and that “the same conduct by a dominant undertaking may have both exclusionary and exploitative effects” (footnote 17).

Additionally, the Draft Guidelines expand their scope to include collective dominance, rather than focusing solely on single-firm dominance.

These Draft Guidelines are significant not only for signaling how the Commission intends to enforce Article 102 against dominant companies—an approach already reflected in practice—but also for revealing how the Commission interprets the evolving case law from European Courts since the Priorities Guidance, and how it seeks to shape its future development. Since the Priorities Guidance was introduced in 2009, its principles have seen mixed outcomes in court decisions.

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