The Commission's Guidance Paper on Abusive Exclusionary Conduct – More Radical than it Appears?

Introducing a more economic approach to European competition law has been a prime concern of DG Competition for the past 10 years. The Communication on the Commission’s enforcement priorities in applying art. 102 TFEU (ex 82 EC), issued in February 2009, constitutes the latest step in this comprehensive policy review. This contribution argues that, despite wording the Communication in a very cautious manner, the Commission has brought its approach to abusive exclusionary behaviour de facto into line with its more economic approach to art. 101 TFEU (ex 81 EC) and the Merger Regulation, as it shall no longer pursue conduct that is unlikely to result in direct consumer harm. This development is problematic because it does not appear compatible with the case law: effectively, the Communication overrides the Court’s position that direct consumer harm is not a requirement of art. 102 TFEU. In combination with the non-legal nature of the Communication and its theoretical vagueness, this discrepancy is further likely to engender significant legal uncertainty and endanger the uniform application of art. 102 TFEU at the national level.