BRUSSELS – The European Commission is gathering feedback on a new approach to enforcing prohibitions of “exclusionary abuses of dominance” described in Article 102 of the Treaty on the Functioning of the European Union (TFEU).
The proposed guidelines introduce a two-pronged test to determine whether a company’s conduct constitutes an abuse of dominance:
1. Departure from the Principle of Competition on the Merits: This involves assessing whether the company’s behavior deviates from normal competitive conduct.
2. Capability of Excluding Competitors: The Commission will evaluate whether the company’s actions could potentially exclude rivals from the market.
The draft guidelines also include presumptions for certain types of conduct, aiming to provide greater legal certainty for businesses. For instance, a very large market share, often exceeding 50%, could be indicative of a dominant position, though not conclusive. The EU’s approach to dominance differs from the United States, where a significantly higher market share (typically exceeding 70%) is often required to establish monopoly power. This difference highlights the more interventionist stance of European antitrust regulators. The Commission’s move to update its guidelines reflects a growing concern over the conduct of dominant firms in the digital and other sectors.