An extract from GCR’s The European, Middle Eastern and African Antitrust Review 2019, first published in July 2018. View the whole publication.

Excerpt: The European Commission’s (the Commission) ‘Guidance on the Commission’s enforcement priorities in applying article 82 of the Treaty to abusive exclusionary conduct by dominant undertakings’ (the Guidance Paper) has, at best, had mixed success. The long-awaited paper advocated a more ‘economic’ approach to the enforcement of article 102 of the Treaty on the Functioning of the European Union (article 102). While some within the Commission may have used the Guidance Paper internally to screen cases and not investigate pricing practices that arguably could have fallen foul of older more restrictive case law, the EU courts and the Commission’s own legal service showed reluctance and even hostility towards the Guidance Paper and continued to apply the older and at times inconsistent case law. This led practitioners to question the value of the Guidance Paper and arguably it risked becoming irrelevant. However, much appears to have changed with the September 2017 judgment in Intel v Commission in which the Grand Chamber of the Court of Justice of the European Union (CJEU) seemingly resuscitated the approach advocated in the endangered Guidance Paper. Nonetheless, while the Grand Chamber judgment emphasises a more economic approach to enforcing article 102, it leaves important questions unresolved.