BEUC NEWS - 30.10.2024

Consumers suffer serious harm when dominant companies reduce choice and stifle innovation by illegally keeping competitors out of a market or by imposing unfair trading conditions. BEUC therefore welcomes the Commission’s proposed Guidelines on abuse of dominance cases (article 102 TFEU) to make enforcement swifter and more effective, in particular through the use of appropriate presumptions. 

In its consultation response to the proposed Guidelines, BEUC has made a number of constructive suggestions on the Commission’s proposed Guidelines to further improve them.

BEUC welcomes the fact that the Commission’s proposed Guidelines set out which categories of conduct can be presumed to cause harm. This should form the basis for a more workable effects-based approach built on extensive European Court case law to speed up enforcement, which is currently unacceptably slow, and to enable the Commission to bring more cases under Article 102 of the Treaty on the Functioning of the European Union (TFEU) to stop such abuses.

BEUC’s suggestions to improve the draft Guidelines include:

•  The description of the scope of interests protected by Article 102

  • the broad scope of these, as identified in the case law, should be set out more clearly in the Guidelines.

  • The Guidelines should also set out more detail on abuse of dominance in relation to sustainability.

• The need to include exploitative abuses in the Guidelines

  • exploitative abuses constitute an important category of abuses for consumers. While fewer exploitative cases have been brought in recent times than exclusionary abuse cases, exploitative cases have been pursued by both the Commission and national competition authorities and confirmed by the European Courts. Exploitative abuses must therefore be included in the Guidelines to promote legal certainty and self-assessment by dominant companies.

• The need for the Guidelines to recognise that consumer behaviour (behavioural biases) can constitute a relevant element of abuses of dominance beyond tying and self-preferencing and should be considered as a potentially relevant element of any case involving consumer-facing markets.

The full text of BEUC’s submission to the Commission is available here.