What the Disparagement Cases Tell Us About Abuses by Object (and the Forthcoming Guidelines)

In this short post, author Pablo Ibañez Colomo (Chilling Competition) introduces his renewed examination of EU case law and enforcement practice on disparagement, drawing on landmark judgments such as Hoffmann-La Roche and the Commission’s decision in Teva-Copaxone. He explains that these cases offer important lessons for interpreting Article 102 TFEU and for shaping the forthcoming Guidelines on exclusionary abuses.

Colomo argues that disparagement cases exemplify why EU competition law properly recognizes a category of “abuses by object.” Where conduct is inherently aimed at undermining competition—such as disseminating misleading information to weaken a rival—it should be unlawful under Article 102 by its very nature, without requiring a detailed assessment of anticompetitive effects. From this perspective, the Commission’s more cautious, effects-based analysis in Teva-Copaxone, while understandable, may go further than legally necessary.

Finally, he suggests that upcoming judicial review of Teva-Copaxone could clarify this point of law and calls for greater conceptual consistency in enforcement and guidance. In particular, he criticizes the Draft Guidelines for avoiding the clear terminology of “abuses by object,” arguing that embracing established case law would simplify and strengthen both legal doctrine and policy.

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