Abuse of Dominance in Focus – New EU Guidelines Announced

The European Commission launched a Call for Evidence, which entails asking for feedback from the business community and the general public on adopting new Guidelines on exclusionary abuses of dominance.

This is indeed one of the most important initiatives within the EU antitrust framework, covering one of the main areas of competition law – abuse of dominance. The currently applicable Guidance on enforcement priorities concerning the abusive exclusionary conduct by dominant undertakings from 2008 – appears to be outdated. The idea behind the introduction of the new Guidelines is to align the theories of harm of potential abuses of dominance with the extensive enforcement practices of the European Commission and the rich case law of the Court of Justice of the European Union. Guidelines, such as this one, are always helpful and welcomed by the business community, as they provide greater clarity, predictability, and more legal certainty with respect to the authorities’ general standpoints on some of the most important issues, such as the notion of anti-competitive foreclosure.

The updates of the EU Guidelines on abuses of dominance seem to be aligned in time with the increased wave of abuse of dominance investigations in the Balkans as well. After a couple of years of relative silence in abuse of dominance cases (for instance, in Serbia after the abandonment of the presumption of dominance several years ago), the potential abuses of dominance are again in the focus of the Balkans’ competition authorities. We have hence evidenced that the Serbian competition authority has recently initiated several abuse of dominance investigations, relating to the markets of primary school textbooks, as well as the market of digital platforms for the sale and delivery of mainly restaurant food. Those investigations are still pending but could indicate that the antitrust dominance cases will be in the loop of the Balkans’ competition authorities in the upcoming period, perhaps even more after the introduction of the new EU Guidelines on exclusionary abuses of dominance.