ERT Response to the Consultation on Draft Guidelines on Exclusionary Abuses of Dominance

In this response paper, the European Round Table for Industry (ERT) provides feedback on the European Commission’s draft guidelines on Article 102 TFEU, which addresses exclusionary abuses of market dominance. While supporting the initiative, ERT has some concerns and proposes revisions on the following points:

Legal Certainty: At present, the guidelines risk increasing uncertainty for businesses and discouraging innovation and competition.

Market Definition & Dominance: The approach to defining dominance and relevant markets is inconsistent with EU case law, leading to potential overreach.

Presumptive Approach: The use of presumptions for abuse findings contradicts established jurisprudence, requiring an effects-based analysis.
As-Efficient Competitor (AEC) Principle: The draft downplays the AEC principle, which is crucial to ensuring competition based on efficiency rather than artificial restrictions.

Consumer Welfare: The guidelines fail to clearly link exclusionary conduct to actual consumer harm.

Sustainability & Efficiencies: There is a lack of clarity on how sustainability objectives and efficiency defenses will be considered under Article 102.

Refusal to Supply: In their current guise, the guidelines would weaken contractual freedom by broadening access obligations beyond essential facilities.

ERT urges revisions to align with EU case law, improve legal certainty, and ensure that competition policy supports innovation and economic growth. Download the full response at the link above.