Episode #40
Episode 40- Unpacking the Commission's Article 102 Guidelines - Simon de Ridder and Ece Ban
In this episode, Anush Ganesh sits with Dr Ece Ban from the University of Exeter and Simon de Ridder from Humboldt University of Berlin to discuss the European Commission's newly adopted Guidelines on exclusionary abuses under Article 102 TFEU. Two years in the making, the final text differs noticeably from the draft consulted on in 2024. The conversation opens with first impressions before turning to the two-pronged test for exclusionary abuse and whether the Guidelines offer a clearer, more operational definition of competition on the merits. We then look at how the presumptions of exclusionary effects have been recast as varying in strength and scope, and whether the sliding scale of evidence makes the Commission's decisions easier to review on appeal or widens its margin of discretion. We discuss what exclusive dealing arrangements a dominant supplier could safely sign off on, whether the Commission is inviting the Court to align by-nature abuses with Article 101 object restrictions, and what replaces the as-efficient competitor benchmark in non-pricing cases, alongside the treatment of predatory pricing and margin squeeze. Finally, we place the Guidelines within the wider modernisation of EU competition policy, reading them alongside the draft Merger Guidelines and the Draghi Report's call for predictability, and ask whether leaving exploitative abuses aside was a missed opportunity.
