Abstract

Two and a half years after their adoption, the function of the Commission Guidance on abusive exclusionary conduct by dominant undertakings is still unclear, also due to an ambiguous approach by the Commission. The Guidelines' irrelevance from a legal standpoint could even jeopardize the uniform application of Article 102 TFEU across the EU. Clearly, the desired modernization in the application of Article 102 TFEU is still far from achieved. In fact, the latest rulings of the European Courts abide by the traditional formalistic approach pursuant to which, for a finding of abuse, it is not necessary to demonstrate - on the basis of sound economic analysis - that the investigated conduct can actually harm competition and consumers. In order to provide companies as well as national competition authorities and courts with a clear framework for assessing the most common forms of exclusionary conduct on the basis of advanced economic principles, the Commission should adopt decisions that are consistent with the Guidance, so as to trigger an evolution in the EU Courts' case law.