Diario Oficial de la Unión Europea del 31/3/2023 - Comunicaciones e Informaciones
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Source: Diario Oficial de la Unión Europea - Comunicaciones e Informaciones
C 116/2
EN
Official Journal of the European Union
31.3.2023
5.
That Communication set out the Commissions enforcement priorities with regard to exclusionary abuses of dominance in order to provide greater clarity and predictability as regards the Commissions general framework of analysis in determining whether to pursue as a matter of priority certain cases of exclusionary conduct 6. The Guidance on enforcement priorities contributed to fostering an enforcement of Article 102 TFEU focused on the capability of a given conduct to harm competition, through the analysis of market dynamics, which has been described as the effects-based approach 7.
6.
The Guidance on enforcement priorities, however, did not constitute a statement of the law and did not provide an interpretation of the notion of abuse of a dominant position, but merely set out the Commissions approach as to the choice of cases that it intends to pursue as a matter of priority 8.
7.
The Commissions enforcement priorities have evolved over time, thanks to the experience gained through the Commissions practice which took into account the evolution of the case law of the Union Courts 9, as well as market developments. Notably, the case law of the Union Courts has confirmed an effects-based approach to Article 102 TFEU as well as clarified the meaning and scope of certain concepts included in the Guidance on enforcement priorities.
8.
In light of those developments, this Communication amends parts of the Guidance on enforcement priorities that no longer reflect the Commissions approach in determining whether to pursue certain cases as a matter of priority. The amendments are done in accordance with the principle of good administration and with a view to enhancing transparency on the principles underpinning the Commissions enforcement action.
9.
The amendments to the Guidance on enforcement priorities are listed in the Annex to this Communication.
6 Guidance on enforcement priorities, paragraph 2.
7 See press release of 3 December 2008, Antitrust: consumer welfare at heart of Commission fight against abuses by dominant undertakings, IP/08/1877.
8 Judgment of 6 October 2015, Post Danmark, C-23/14, EU:C:2015:651, paragraph 52.
9 Since the adoption of the Guidance on enforcement priorities, the Commission has adopted 27 decisions based on Article 102 TFEU
relating to exclusionary conduct, and the Union courts have issued 32 judgments.
