A Less Economic Approach? – The Commission’s Draft Guidelines on Article 102 TFEU in light of Proportionality and Legal Certainty
(2025) JURM02 20251Department of Law
Faculty of Law
- Abstract
- The increasing dominance of tech giants and the emergence of new digital markets have increased the relevance of Article 102 TFEU, yet the article’s enforcement mechanisms have not kept pace with the market’s rapid developments. In August of 2024, the European Commission responded to this need for more efficient enforcement by publishing its Draft Guidelines on the exclusionary abuse of dominance under Article 102 TFEU. The Commission’s Draft Guidelines seek to clarify and update the enforcement and does so by introducing a general two-step test for assessing abuse and evidentiary presumptions. The stated aim of the Draft Guidelines is to enhance legal certainty for companies, national courts, and competition authorities, thereby... (More)
- The increasing dominance of tech giants and the emergence of new digital markets have increased the relevance of Article 102 TFEU, yet the article’s enforcement mechanisms have not kept pace with the market’s rapid developments. In August of 2024, the European Commission responded to this need for more efficient enforcement by publishing its Draft Guidelines on the exclusionary abuse of dominance under Article 102 TFEU. The Commission’s Draft Guidelines seek to clarify and update the enforcement and does so by introducing a general two-step test for assessing abuse and evidentiary presumptions. The stated aim of the Draft Guidelines is to enhance legal certainty for companies, national courts, and competition authorities, thereby facilitating more effective self-assessment and enforcement.
The Draft Guidelines have however faced criticism for an alleged selective interpretation of case law, with some commentators arguing that the introduced two-step test is unnecessary and that the Commission appears to be retreating from the effects-based approach that characterised the 2009 Guidance Paper. Most of the commentaries on the Draft Guidelines discuss its impact on legal certainty, but none discuss the proportionality of the measure.
The thesis aims to analyse the relation between the Draft Guidelines and the principle of proportionality and legal certainty. In order to fulfil the aim, the thesis uses the legal doctrinal method and the EU legal method in order to interpret current law. In order to answer the research questions, the discussion applies the proportionality test developed in the CJEU to the Draft Guidelines. Although the Guidelines will constitute soft law and thereby not constitute a measure that is reviewable by the CJEU, it still has a lot of influence over how the field of competition law will change. Ultimately, the thesis determines that the Draft Guidelines’ objectives are not only to increase legal certainty, but also to create a more efficient and ‘workable’ competition law enforcement. The Draft Guidelines are considered to pass the proportionality test since it does, to an extent, increase legal certainty and take a step towards a more workable enforcement without affecting other interests to a disproportionate degree. The measure does however leave a lot to be desired, as it does not develop the definition of abuse as much as one could have hoped. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/9188988
- author
- Dernulf, Alexander LU
- supervisor
- organization
- course
- JURM02 20251
- year
- 2025
- type
- H3 - Professional qualifications (4 Years - )
- subject
- keywords
- EU law, Competition law, Article 102 TFEU.
- language
- English
- id
- 9188988
- date added to LUP
- 2025-06-13 11:38:32
- date last changed
- 2025-06-13 11:38:32
@misc{9188988,
abstract = {{The increasing dominance of tech giants and the emergence of new digital markets have increased the relevance of Article 102 TFEU, yet the article’s enforcement mechanisms have not kept pace with the market’s rapid developments. In August of 2024, the European Commission responded to this need for more efficient enforcement by publishing its Draft Guidelines on the exclusionary abuse of dominance under Article 102 TFEU. The Commission’s Draft Guidelines seek to clarify and update the enforcement and does so by introducing a general two-step test for assessing abuse and evidentiary presumptions. The stated aim of the Draft Guidelines is to enhance legal certainty for companies, national courts, and competition authorities, thereby facilitating more effective self-assessment and enforcement.
The Draft Guidelines have however faced criticism for an alleged selective interpretation of case law, with some commentators arguing that the introduced two-step test is unnecessary and that the Commission appears to be retreating from the effects-based approach that characterised the 2009 Guidance Paper. Most of the commentaries on the Draft Guidelines discuss its impact on legal certainty, but none discuss the proportionality of the measure.
The thesis aims to analyse the relation between the Draft Guidelines and the principle of proportionality and legal certainty. In order to fulfil the aim, the thesis uses the legal doctrinal method and the EU legal method in order to interpret current law. In order to answer the research questions, the discussion applies the proportionality test developed in the CJEU to the Draft Guidelines. Although the Guidelines will constitute soft law and thereby not constitute a measure that is reviewable by the CJEU, it still has a lot of influence over how the field of competition law will change. Ultimately, the thesis determines that the Draft Guidelines’ objectives are not only to increase legal certainty, but also to create a more efficient and ‘workable’ competition law enforcement. The Draft Guidelines are considered to pass the proportionality test since it does, to an extent, increase legal certainty and take a step towards a more workable enforcement without affecting other interests to a disproportionate degree. The measure does however leave a lot to be desired, as it does not develop the definition of abuse as much as one could have hoped.}},
author = {{Dernulf, Alexander}},
language = {{eng}},
note = {{Student Paper}},
title = {{A Less Economic Approach? – The Commission’s Draft Guidelines on Article 102 TFEU in light of Proportionality and Legal Certainty}},
year = {{2025}},
}