Guidance on the Commission’s Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings

On December 3, 2008, the EU Commission’s Directorate General for Competition published its Guidance on the Commission’s Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings. The Guidance represents the culmination of years of work by DG Competition and the EU Member States’ competition authorities, publicly launched in December 2005 with the publication of DG Competition’s Discussion Paper on the application of Article 82 EC to exclusionary abuses. Completion of the Guidance was delayed by the need to await the judgment of the Court of First Instance in Microsoft’s appeal of the Commission’s 2004 decision imposing fines against Microsoft for violations of Article 82 EC and by disagreements over controversial areas such as the treatment of rebates. The Guidance is also more limited than originally anticipated. Nonetheless, the Guidance represents a commendable effort to establish a coherent economics-based framework for the analysis of exclusionary conduct under Article 82 EC.