Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings

The OCA welcomes publication of the Commission’s guidance on its enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings.

The Communication does not amount to a statement of law but alongside its specific enforcement condition “is intended to provide greater clarity and predictability as regards the general framework of analysis which the Commission employs in determining whether it should pursue cases concerning various forms of exclusionary conduct and to help undertakings better assess whether certain behaviour is likely to result in intervention by the Commission under Article 82”.

Included in the Communication is guidance on the specific abuse of refusal to supply which covers, for instance, refusal to provide interface information or to license intellectual property rights both of which are critical to the issue of interoperability.

The Commission will consider refusal to supply an enforcement priority if all the following circumstances are present:

• the refusal relates to a product or service that is objectively necessary to be able to compete effectively on a downstream market;
• the refusal is likely to lead to the elimination of effective competition on the downstream market;  and
• the refusal is likely to lead to consumer harm.

Download the guidance here.