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BIICL hosts discussion of Article 102 TFEU in Brussels

On Thursday 22nd of February, the Competition Law Forum held a lively discussion in Brussels focusing on the forthcoming guidelines on exclusionary abuses under Article 102 TFEU. 

Following the roundtable here are some key takeaways from the discussion

  • The purpose of guidelines is to codify case law and create transparency.
  • The Commission was urged to be honest in its interpretation of the case law. For example, it should not read too much into the reference to 'object infringement' in the Super League case due to the specific facts of the case.
  • The forthcoming exclusionary guidelines will not depart from the effects-based approach or the consumer welfare standard.
  • The consumer welfare standard in the EU has always been considered as covering more than just effects on prices.
  • The guidelines will take into account that, in line with the case law, the general legal standard as regards establishing exclusionary effects is the capability of the conduct to produce such effects or, in other words, the standard is potential effects as opposed to hypothetical or actual effects.
  • Some believe that the 'As Efficient Competitor' test (AEC) lends itself better to pricing than non-pricing cases.
  • Others even believe that the AEC test means very little unless it is applied to a regulated industry.
  • There was a call for the Commission to make a distinction between the rationale underlying the AEC test and the test itself as well as provide some guidance on the former.
  • There was also a call for some guidance on the meaning of competition on the merits although it was acknowledged that it is a concept developed by the courts and they have not provided much guidance on this concept.
  • The Commission is hoping to have a draft of the guidelines ready for public consultation by the summer.

The audience for the discussion included practicing lawyers, economists, business and academics and was hosted under the Chatham House Rule.

For more details read the full press release about this event 

Details of the Competition Law Forum 

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