Analysing the Commission's Guidance on Enforcement Priorities in Applying Article 102 TFEU — An Efficiency Defence for Abusive Behaviour of Dominant Undertakings?

Abstract

Considering that in an EU competition law context, dominant undertakings have traditionally been placed under a more stringent regime than their non-dominant counterparts, the introduction of an efficiency defence in the latest Commission's Guidance on the application of Article 102 TFEU can be evaluated as a true novelty. Given the success of the Article 101-regime it is not surprising that the requirements for using the efficiency defence are very similar to the preconditions asked for under Article 101(3) TFEU. While it should be welcomed that efficiencies are acknowledged in an Article 102-context, it is questionable whether a defence that is modelled so closely along the lines of a regime applicable to non-dominant undertakings will be equally effective for dominant market participants. The following article gives an exhaustive overview of the development and possible employment of the newly introduced efficiency defence for dominant undertakings. While familiarizing the reader with the Guidance in general and the requirements of the efficiency defence in particular, the main focus of this article will be on whether the efficiency defence in its current form can be a useful tool for dominant undertakings in practice.