Will Efficiencies Play an Increasingly Important Role in the Assessment of Conduct under Article 102 TFEU?

Abstract

This article addresses the role of efficiencies in abuse of dominance cases in the European Union. After briefly examining how efficiencies have previously been taken into account in the decisional practice of the European Commission and the case law of the European Courts, this article reviews the two-step approach set out in the recently adopted Guidance Paper on Abusive Exclusionary Conduct. In essence, this test provides that the European Commission will first explain how the allegedly abusive conduct is likely to restrict competition and thereby harm consumers, following which the undertaking concerned will be entitled to rebut the finding by showing that the conduct creates efficiencies that leave consumers overall better off than before. The article then questions whether the Guidance Paper is likely to significantly increase the role that efficiencies will play in future cases, concluding that significant changes are unlikely.