Karel Bourgeois

On August 1, 2024, the European Commission published its draft Guidelines on abusive exclusionary conduct by dominant undertakings. Their adoption would mark the first major update in over 15 years of the Commission’s guidance on the application of the prohibition of abuse of dominance laid down in Article 102 of the Treaty on the Functioning of the European Union (TFEU). The Commission’s 2008 Guidance on enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, which received only a limited update in 2023, were once hailed as a welcome move away from a legalistic, form-based approach to an effects-based approached informed by economics. Is the pendulum now swinging back to a more formalistic approach based on presumptions, shifting the burden of proof onto dominant undertakings and heralding an era of stricter enforcement?...