New Article: A Final Call for the European Commission Exclusionary Abuse Guidelines: Back to (Economic) Principles

Juan Delgado and Héctor Otero (GAMES economics) published the article “A Final Call for the European Commission Exclusionary Abuse Guidelines: Back to (Economic) Principles”, available at Competition Policy International CPI Europe Column, a website specialized in antitrust and competition policy. The article reviews the European Commission Draft Guidelines (DGs) on exclusionary abuses, summarizing the main economic concerns raised by the DGs and identifying the questions the final version of the guidelines should address to become an effective and useful instrument.

The European Commission is about to publish new guidelines for the analysis of exclusionary abuses under Article 102 TFEU. The 2024 DGs, subject to public consultation in Summer 2024, aimed to enhance legal certainty and guide competition law enforcement. However, they departed from established economic principles and previous approaches, such as the 2009 Guidance Paper. The DGs adopted ambiguous criteria like “competition on the merits” and emphasized “harm to competition” instead of a clear consumer harm standard. These vague definitions lack measurable standards, potentially increasing legal uncertainty and enabling discretionary enforcement.

A framework rooted in economic theory—with clear consumer harm objectives, explicit theories of harm, and robust economic tools—is essential for consistent and predictable competition law enforcement, and to meet the Guidelines’ own goals effectively. 

The opinions expressed in this article are the sole responsibility of the authors and cannot be attributed to GAMES Economics.