If you, as I am, are passionate about antitrust, it will not have escaped you that the European Commission has amended its 2008 guidance paper on enforcement priorities in relation to exclusionary abuses of dominant positions under Article 102 TFEU. The changes come under the guise of better reflecting caselaw of the European Court of Justice in the area since 2008 to now.

The changes to the enforcement notice itself are not many but important as they, in a nutshell, seek to scale back and to some extent reduce the importance of the “As-Efficient-Competitor" (AEC) test, as well as lowering the threshold for intervening against actions related to input foreclosure, thus providing the European Commission a (slightly) less onerous pathway to some of the major cases it has been investigating over the last many years requiring tremendous resources.

While the amended 2008 Enforcement Priorities stress the AEC test is only warranted in predatory pricing and margin squeeze cases, and that the European Commission will not generally carry out an AEC test when assessing rebates, it is left to be seen exactly what types of evidence that an authority may rely on to refute a robust AEC-test submitted by the defendant (and whether their chosen approach will not be contrary to what recent case law requires of the European Commission…).

But perhaps more importantly, the changes also herald that the European Commission will be issuing real interpretative guidelines on exclusionary abuses, like we know it from vertical as well as horizontal agreements and many other areas of competition law. These guidelines are expected to be published in 2024 for final adoption in 2025.

In short, lots of changes coming – keeping antitrust law fresh and invigorating as always.

Click here to read more details about the changes in our recent article

. Enjoy.