The Luxembourg Competition Authority, as a member of the European Competition Network (ECN), fully endorses the European Commission's draft Guidelines on exclusionary abuses.
These Guidelines aim to strengthen the enforcement framework of Article 102 of the Treaty on the Functioning of the European Union (TFEU), ensuring that actions against abusive exclusionary practices by dominant undertakings are meaningful, effective, and coherent.
The ECN, having actively contributed to the Guidelines, issued a joint statement endorsing the European Commission’s initiative. The ECN considers exclusionary abuse as various behaviours that distort effective competition to the detriment of the public interest, other market players and consumers. The capability of a given conduct to produce exclusionary effects can be demonstrated through various qualitative and quantitative tools, depending on the specific behaviour and circumstances, consistent with EU Courts’ case law.
To ensure effective and deterrent enforcement of Article 102 TFEU, the ECN emphasizes the importance of a proportionate evidentiary burden in demonstrating exclusionary effects, relative to the likelihood of harm.
The Competition Authority, together with the ECN, thus agrees with the draft Guidelines’ interpretation of the EU Courts’ case law as regards the existence of legal presumptions for certain types of conduct, that are highly likely to produce exclusionary effects.