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31.3.2023

EN

Official Journal of the European Union
C 116/3

ANNEX to the COMMUNICATION FROM THE COMMISSION

Amendments to the Communication from the Commission Guidance on the Commissions enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings
1.

Taking into account the experience gained through the Commissions enforcement practice and the clarifications provided by the case law of the Union Courts, it is appropriate to clarify that the concept of anti-competitive foreclosure Guidance on enforcement priorities, paragraph 19 refers not only to cases where the dominant undertakings conduct can lead to the full exclusion or marginalisation of competition but also to cases where it is capable of resulting in the weakening of competition, thereby hampering the competitive structure of the market to the advantage of the dominant undertaking and to the detriment of consumers. Moreover, in view of the Commissions enforcement practice and the case law of the Union Courts, it is important to clarify that it is not appropriate to use the element of profitability of the dominant undertakings conduct in order to determine the Commissions enforcement priorities, i.e. to pursue cases as a matter of priority only where the dominant undertaking can profitably maintain supra-competitive prices or profitably influence other parameters of competition, such as production, innovation, variety or quality of goods or services. Therefore, in paragraph 19 of the Guidance on enforcement priorities, the second sentence is replaced by the following text:

In this document the term anti-competitive foreclosure is used to describe a situation where the conduct of the dominant undertaking adversely impacts an effective competitive structure 1a thus allowing the dominant undertaking to negatively influence, to its own advantage and to the detriment of consumers, the various parameters of competition, such as price, production, innovation, variety or quality of goods or services 1b.

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1a Judgment of 19 January 2023, Unilever Italia Mkt.Operations Srl v Autorita Garante della Concorrenza e del Mercato, Case C-680/20, EU:C:2023:33, paragraph 36.
1b Judgment of 14 September 2022, Google and Alphabet v Commission Google Android, T-604/18, EU:T:2022:541, paragraph 281.

2.

Taking into account the experience gained through the Commissions enforcement practice and the clarifications provided by the case law of the Union Courts, it is not appropriate, as regards price-based exclusionary conduct of a dominant undertaking, to pursue as a matter of priority only conduct that may lead to the market exit or the marginalisation of competitors that are as efficient as the dominant undertaking in terms of their cost structure.
Indeed, in certain circumstances genuine competition may also come from undertakings that are less efficient than the dominant firm, in terms of their cost structure. Therefore, as set out below, two amendments to the Guidance on enforcement priorities are made:
a In paragraph 23 of the Guidance on enforcement priorities, the last sentence is replaced with the following text:
With a view to preventing anti-competitive foreclosure, the Commission will generally intervene where the conduct concerned has already been or is capable of hampering competition from competitors that are considered to be as efficient as the dominant undertaking 1.

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1 Judgment of 3 July 1991, AKZO Chemie v Commission, Case 62/86, EU:C:1991:286, paragraph 72, where, in relation to pricing below average total cost ATC, the Court of Justice of the EU stated: Such prices can drive from the market undertakings which are perhaps as efficient as the dominant undertaking but which, because of their smaller financial resources, are incapable of withstanding the competition waged against them; see also judgment of 10 April 2008, Deutsche Telekom v Commission, T-271/03, EU:T:2008:101, paragraph 194, upheld on appeal by the Court of Justice see judgment of 14 October 2010, Deutsche Telekom AG v Commission, C-280/08 P, EU:C:2010:603. The Court of Justice has recognised that the notion of an as efficient competitor refers to efficiency and attractiveness to consumers from the point of view of, among other things, price, choice, quality or innovation, see judgment of 6 September 2017, Intel Corp. v Commission, C-413/14 P, EU:C:2017:632, paragraph 134, and judgment of 19 January 2023, Unilever Italia Mkt. Operations, C-680/20, EU:C:2023:33, paragraph 37.