I appreciate the opportunity to provide comments on the European Commission’s Draft Guidelines on applying Article 102 TFEU. However, while the Draft Guidelines mark an important step in clarifying the application of Article 102 TFEU, many commentators have expressed concerns over a perceived shift away from the effects-based approach established in the 2009 Guidance and the case law.
Some commentators argue that the new approach places less emphasis on consumer harm and focuses more on formalistic rules, potentially weakening economic assessments of anti-competitive conduct. Others have raised concerns about the introduction of presumptions, which, by shifting the burden of proof onto companies, will reduce legal certainty. The downplaying of the As-Efficient Competitor (AEC) principle is also seen as problematic, highlighting potential conflicts with case law, including Intel and Post Danmark I.
Given these concerns, I believe further clarification could enhance transparency, legal certainty, and consistency in enforcing Article 102 TFEU. My comments below specifically address the concept of the AEC test in general and in the context of fidelity rebates.
