The Commission’s Art.102 TFEU guidelines: consolidation or creation?

In August 2024, the European Commission released revised Draft Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant firms. This paper assesses the Guidelines through the lenses of legality and clarity—core to ensuring predictable enforcement and consistent litigation outcomes. We argue that the Guidelines use convoluted language to support a tenuous reading of the case law, risking ambiguous interpretations of Article 102 and influencing market behaviour in ways that may contradict the law’s intent. Although they claim to codify the jurisprudence of the Court of Justice, the Guidelines depart from it by selectively reading in presumptions of illegality while downplaying effects analysis. In doing so, they reflect the Commission’s preferred policy stance rather than settled law. These shifts push the Guidelines beyond the proper bounds of soft law, creating legal uncertainty and increasing the likelihood of conflict with the Court. [ABSTRACT FROM AUTHOR]