The European Commission’s Draft Article 102 Guidelines Under Fire: Examining the substance and the roots of the Criticism

Recently, the European Commission published Draft Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings, which provoked considerable criticism and raised concerns among commentators. The main concerns are raised about the shift away from the established effects-based approach, and in that context, particularly the downplaying of the As-Efficient Competitor (AEC) test; and the introduction of presumptions, which may diminish legal certainty by shifting the burden of proof onto companies. This paper provides a critical analysis of the Draft Guidelines, evaluating their consistency with the existing legal framework and case law. It focuses on addressing the concerns expressed publicly by various stakeholders, evaluating their validity, and determining whether they are fully sustainable. While some concerns may have merit, this paper argues that the criticisms are not entirely justified. The goal of the paper is to formulate recommendations that both reflect stakeholders’ concerns and remain practical and balanced in application.