Oxera has published its response to the European Commission’s public consultation on its draft guidelines for the application of Article 102 to abusive exclusionary conduct (‘the draft guidelines’).

• Oxera’s response highlights areas where the guidelines could be improved to better align with established economic principles.
• Oxera recommends amendments which would ensure that only exclusionary conduct that is likely to ultimately lead to consumer harm is liable to be abusive under Article 102, without diluting incentives for procompetitive conduct.

In August 2024 the European Commission published draft guidelines on exclusionary abuse under Article 102—the only legal instrument where the Commission has not adopted guidelines to date—in a bid to provide clarity and guidance on the enforcement of Article 102 and to reflect recent developments in jurisprudence.

Oxera welcomes the publication of guidelines in this area, and agrees with the Commission’s stated objectives to provide legal certainty and promote a workable effects-based approach.

Oxera’s response to the draft guidelines identifies the need for a stronger emphasis on theories of consumer harm, more explicit reliance on sound economic criteria, and clearer safe harbours and limiting principles for enforcement. Oxera’s recommendations are aimed at enhancing legal predictability and at improving the legal framework set out in the draft guidelines to ensure that it is capable of reliably detecting anticompetitive conduct without diluting incentives for procompetitive behaviour by dominant firms.

Commenting on Oxera’s response, Oxera Partner Dr Giulio Federico said: ‘Since the release of the draft guidelines last summer, we have engaged in the discussion and have facilitated conversations to review the guidelines from an economic perspective. We very much welcome the initiative to issue guidelines for Article 102, and are pleased to be able to respond to the consultation. In our response, we outline how the guidelines could be improved by relying more directly on sound economic principles and concepts. We believe that our recommendations would enhance legal certainty at the same time as promoting a genuine, and yet workable, effects-based approach.’

In anticipation of the release of the draft guidelines, the Oxera Economics Council met in spring 2024 to discuss options for reform of Article 102, taking into account the latest developments in the economic literature and jurisprudence. Following the draft guidelines’ release, Oxera organised one of the first discussions on the document in a webinar that included Lluís Saurí Romero (Acting Chief Economist, DG Competition) and Massimo Motta (ICREA-Univ. Pompeu Fabra and Barcelona School of Economics, former Chief Economist of DG Competition). Oxera’s response to the consultation builds on these discussions, although the views expressed in the response reflect those of Oxera only and not those of the members of the Oxera Economics Council.

Read Oxera’s response here.