On 31 October, a couple of months before Christmas, I had already sent my Santa letter to the European Commission in response to the public consultation on the Draft Communication from the Commission—Guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union to abusive exclusionary conduct by dominant undertakings (Draft Guidelines)—see full version below. The background is the ongoing debate on whether competition law should incorporate non-market values, such as fairness, sustainability or even plurality and democracy, which has prompted an existential crisis that appears to have become chronic. In particular, there seems to be a disconnect between recent case law of the Court of Justice of the European Union (CJEU) and the Commission’s enforcement approach. Regarding Article 102 TFEU, while the former clearly leans towards making the relative efficiency of competitors of the dominant undertaking the criterion for abusive conduct (e.g., C-377/20 Servizio Elettrico Nazionale, para 101; C-48/22 P Google Shopping, para 164; C-240/22 P Intel RENV, para 181), the Commission insists on building cases grounded in fairness concerns (e.g., AT.40437 Apple—App Store Practices (music streaming)).
Continue reading “Dear Santa, I’d like to ask a consistent framework for Article 102 TFEU”