Varieties of an Effects-Based Approach to Abuse of Dominance: Understanding the Two Concepts of Presumptions in The EU Commission's Draft Guidelines on Exclusionary Abuses

Abstract

Following severe dysfunctionalities in the enforcement of Article 102 TFEU and major setbacks in the judicial review of its prohibition decisions, the European Commission has drafted Guidelines on exclusionary abuses that entail two distinct concepts of presumptions to ease the burden borne by the Commission when proving that a dominant undertaking’s allegedly abusive conduct is capable of producing exclusionary effects. These presumptions do not abandon an effects-based approach to abuse of dominance. Rather, they fit into the everlasting struggle of finding an adequate evidentiary law standard to show potential exclusionary effects and, in principle, are very much consistent with the Union Courts’ recent jurisprudence on Article 102 TFEU. The tests triggering the presumptions might, however, need additional refinement in the process to adopt the Guidelines, or in the Commission’s future decision-making practice, and so their practical value is yet to be determined.