📢 𝐂𝐨𝐦𝐦𝐢𝐬𝐬𝐢𝐨𝐧 𝐩𝐮𝐛𝐥𝐢𝐬𝐡𝐞𝐬 𝐝𝐫𝐚𝐟𝐭 𝐠𝐮𝐢𝐝𝐞𝐥𝐢𝐧𝐞𝐬 𝐨𝐧 𝐞𝐱𝐜𝐥𝐮𝐬𝐢𝐨𝐧𝐚𝐫𝐲 𝐚𝐛𝐮𝐬𝐞𝐬 𝐟𝐨𝐫 𝐜𝐨𝐧𝐬𝐮𝐥𝐭𝐚𝐭𝐢𝐨𝐧

The draft guidelines cover the constituent elements for exclusionary abuse of dominance and discuss specific exclusionary practices, such as predatory pricing, tying, and refusal to supply. They do not cover exploitative practices, such as excessive prices or restrictions of parallel trade, despite increased enforcement action in this field (think Apple and Mondelez).

Besides the criteria for assessing single and collective dominance, the condition of exclusionary effects will likely attract the most attention.

In the draft guidelines, the Commission distinguishes between:

» conduct for which actual or potential exclusionary effects must be shown;
» conduct that is presumed to have actual or potential exclusionary effects; and
» so-called naked restrictions for which the presumed actual or potential exclusionary effects can be rebutted only in very exceptional circumstances.

Regarding the latter naked restrictions, the draft guidelines mention practices such as payments made by a dominant undertaking to customers on condition that they postpone or cancel the launch of products based on competitor products and agreeing with distributors to swap competing products with those of the dominant undertaking under the threat of withdrawing the distributors’ discounts.

A careful review will reveal if the draft guidelines indeed reflect the case-law, in particular where they shift the burden of proof to companies.

🔎 Read the draft guidelines here.

Questions? ☎️ Feel free to contact your usual contact person at contrast.

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