Article 102 TFEU: Past, Present and Future

In March 2023, the European Commission launched a process leading to the adoption of Guidelines for Article 102 of the Treaty on the Functioning of the European Union (Article 102 TFEU), with regard to exclusionary practices, i.e., practices that harm competitors and thus competition. The Guidelines are aimed at increasing legal certainty to the benefit of consumers, businesses, national competition authorities, and national courts. In this in-depth analysis of the role of Article 102 TFEU in EU law, prominent scholars and practitioners trace the roots of this fundamental provision, identify the forces that have driven its development, and examine its future challenges in the light of the forthcoming guidelines.

While reviewing the case law and analysing how it has foreshadowed the new Commission Guidelines, the contributing authors discuss such issues and topics as the following:

• the evolution of the notion of abuse and the challenges for its assessment;

• the concept of 'competition on the merits';

• benefits and limitations of the effects-based approach;

• the relationship between market power and market definition;

• the impact of the revised market definition notice on the assessment of abuse of dominance;

• categories of abuses and effectiveness of legal tests;

• particular abuses, such as refusal to supply (seen in the context of the 'essential facilities' doctrine) and 'self- preferencing';

• presumptions and other evidentiary burden shifting tools in abuse of dominance cases;

• standards of proof and judicial review of abuse cases; and

• judicial style in Article 102 TFEU cases.

As a contextual tool to read the forthcoming Commission Guidelines on Article 102 TFEU, this book has no peers. Not only does it provide insight into what the Guidelines will look like, but it also offers expert recommendations for an effects-based framework for the enforcement of the law. The book will be widely welcomed by the entire competition law community, including counsel for multinational enterprises.