The (Second) Modernisation of Article 102 TFEU: Reconciling Effective Enforcement, Legal Certainty and Meaningful Judicial Review

Abstract

In March 2023, the European Commission (hereinafter, the ‘Commission’) launched an initiative that will ultimately lead to the adoption of a set of Guidelines on exclusionary abuses.1 The announcement gives veteran EU competition lawyers a sense of déjà-vu. Back in 2005, the authority released a Discussion Paper on Article 102 TFEU,2 which paved the way for publication of the so-called Guidance three years later.3 It does not take much scratching beneath the surface, however, to realise how different both exercises are. The (future) Guidelines on exclusionary abuses are destined to be more ambitious than their predecessor. The Guidance Paper was always conceived and presented as a modest attempt to explain how the authority intended to exercise its discretion.4 The Commission clarified that it could not be construed as an interpretation of the notion of abuse.5 The declared goal of the ongoing initiative, by contrast, is to codify existing case law.6 This paper takes stock of the case law of the past decade and discusses how Article 102 TFEU can be interpreted and applied in a manner that is consistent with effective enforcement, legal certainty and meaningful judicial review. The Court of Justice has consistently expressed a preference for consistency and continuity, whereas the European Commission has signalled that it values flexibility and effectiveness. Four key principles, which could ensure that the three abovementioned interests can be reconciled, are identified. It is submitted, in particular, that substantive standards should be (i) administrable, (ii) built around structured legal tests, and (iii) capable of being disproved. The Guidance Paper and the Guidelines-in-the-making differ from one another because they do not target the same actors within the system. The former (just like the 2005 Discussion Paper that preceded it) was primarily aimed at the business community. It sought to address what might be termed a legitimacy crisis in enforcement. The Commission’s policy in relation to exclusionary abuses had come under widespread criticism from the early 2000s.7 Decisions like British Airways8 and Michelin II9 embraced an approach that was difficult to predict, was at odds in several respects with and to take the within which an that that the of was as could under Article 102 as to the The Guidance Paper was a to and It a to the and to to the of The launched in March 2023, by contrast, is as a the Commission and the Court of Justice (hereinafter, the the The that the publication of the Guidance Paper are much in with the approach that the Commission to its in the case law the Court declared that Article 102 TFEU is not with the of which clarified that that the is of competition in the a on the Commission to in of several its This of case with the in policy in the Guidance a of for an a substantive the of that and is that the Commission is not in to the exclusionary of The of is that the authority more difficult to as a is however, around the of an to the legal be more than it to it is not how much more as as the of and the The Guidelines the Commission an to in the case law and an for the of Article 102 TFEU to exclusionary This of paper the the Commission’s It does in The the and in the and of the of actors are are it is for Court to the notion of a effective enforcement, legal and meaningful judicial review. The discusses what can be termed the Article 102 TFEU of the past that the of law that the Court has The in the which are the the Guidelines are more to on the of the case the paper of the that could in the of the three In the EU legal it is for the Court to the and of competition law Article 102 the has the to an on of on the of Commission it that judicial at the Court has to and 102 TFEU in the of a for a legal for and the of the in the system. It is both with the of and with that are interpreted and applied the This the way it the of Article 102 of the of the case law that is the preference for on the existing of and the Court its on that it has expressed in a past In it has to past and to do It to its case as to from the existing of The to which the values can be by to which is as one of the of the past The does not to which are as In the Court declared that of from it presented the legal as a that a in the case an the values the consistent interpretation of EU competition law This is not of a with and It is an to the of the EU legal was to the of and 102 TFEU by and This can be the are applied the the of the EU legal and legal the adoption of has a of the Court to in the case In for the by the on the on the one and and on the In in the Court had to with the the of the of more the in the case law around the of the of exclusionary The Commission is in of and competition In the EU within the by an to Article 102 for it that an a in the and that its to an The and of EU competition policy on how much the law the of the Commission competition The by the Court the of EU in by the of the what the authority to by the of that the Commission to the has on the law and policy are not to be authority like the Commission on that the substantive standards are in the of a they be to be an to the effective of competition the standards be the sense that they do not for flexibility to the of the of to The Commission be of the it for in that it to in that the three in and are its to the exercise of an its in the one the Commission to an interpretation of Article 102 TFEU that for effective in the same which is to to the of The that the Commission in March which the of its The to a and approach to the interpretation of Article 102 which in is one that for the meaningful of the and that is capable of to the of and the Commission takes the in its that it not be to as a of the of in The that the that legal as as lawyers and signalled the of being to not a will be to Article 102 The to legal certainty by that to the an approach to that one that is to and on the of the In which was as an the that the to of the case be in of the set in to a set of which was the approach by the the a that to their on the and that to the the and of The effective judicial of is to the of much in that of the the past decade in that a by a to ensure that the by are by the Commission the for the in the to in the of the the exclusionary of is by the by the The of the that both the Commission and the of the for different not the of the an is one that does not with the effective of Article 102 a is not at odds with legal certainty can that from an and to In however, the of the in the of be in with legal The flexibility that could existing of the of a being can be and the and are structured around a and set of they not legal certainty to for effective enforcement. the come with This be the in particular, the they in of their are in of it for the authority to its of In the that the of legal might be an to effective enforcement, in the sense that it for for the of existing substantive standards to and effective enforcement, and its with and legal certainty the the of and legal certainty are with its and as an It is to ensure the of and 102 TFEU the the substantive standards can be with by and is a judicial at the EU is to be should in in that are to in of than are. of the that it on consistency and continuity, the of is not in with legal The from the from the to for flexibility and in in the of effective in the of In and as in the the both of that it values as an and that ensure that the can its the flexibility and and and judicial Four the of has always a in EU competition In the that lead to the adoption of the Guidance Paper was to a by the within the business that the of Article 102 TFEU was to The Commission’s to the of was a to the publication of the Guidance The in the It has consistently the past that the of the exclusionary of be a of more of This be in particular, in by to their the Commission’s The of is a from a legal the however, the that with the of and is a different the that the to consistency and continuity, it is to that the of Article 102 TFEU will lead to always and The of and legal certainty and an of the system. the from the is not can be as a of how substantive standards can be that they are The in is how to and the law and abuses of at the case law that on the of enforcement. on how the is can of a of that could be in can be presented a from the of as as in of their to their as to substantive standards is the of the of The with which an can be is to the of an authority is a that be and that they be to in the and more the legal is to the of the of and the of Article 102 TFEU case law has the past It is to a set of an and as a for the interpretation of the notion of are in of to do with the of that within the of the In it that both and is to Article 102 to the and of the notion of is the the case law has the the has a of It to be from the and to a of a of the of the under British are in of Article 102 TFEU of their on to the by the Court one can a that is and that is it can be that it in the and legal of which it is a In from Article one can and under Article 102 The is one takes a at like on the one and on the In the of the Court in that and the is of a exclusionary are of their in by their In the Court in that a does in and of Article 102 It is in It is by the it can be that it is a of exclusionary The that of that to a of a of their on at in and the to in The that is by its whereas are by Article 102 TFEU as they was in the Court that a to an it is at odds with competition on the the has in it than as a to The same is to the the the of to the of a In in at in and the of the is an of competition on the and that of it one and the same The to from the is that are by their In an can be it being to their on This does not however, that are in the It that are to from the of the they not be by the authority In the Court clarified that a of that the can a on The to is the in in and It is for a to the the of and that the is of competition on the in which it is the in it a on the authority to its The Court has consistently that the of Article 102 TFEU does not to for the to can be of the of a is a as an of the and legal be the is be the has for a of can be on the that might the be on a of on a It be on the in which the is The of be in of several that will be in In the Court that be to the for Article 102 TFEU to In the exclusionary of a an authority that is a the and the that it is to the they can be to as the of which the is a to the that the of the the the the the of not be to the to the that it is the of the The Court has what an around the This the case law on what an is like and it that the that are at a does not in and of of an to an from the that they are in of be to to the legal that a of be as a of a be This was in the that a of a to more from it does not the authority from the to its in of the The Article 102 TFEU a of the of the notion of the Court has several in of which the be of has not the of a is one of the to in the in and the of the is a of the of a is of competition it to a of the Court has that not are is a in the for an to and a a to from the the of the is another to the the of by the the more the are. the that the is of a exclusionary a in the are that a in the of the and the The has to the of under Article in the Court the a as a the has an on the the does not to a of by is Article 102 TFEU is at The of the a of the of a are to the legal in an Article 102 TFEU it is not to in that are This in is not it to be at is because the of to be with The that is for a in of does not that has an It does not that is an an authority to the in the to an on The has as one of the of the case law of the past its can be to and it was in The Court in that that exclusionary is to and that on the by lead to the from the the of that are and to from the of In the that the of is a and of the and that it be not to the of Article 102 to they in the with and more The from of the case law more from the of the EU legal be to the for Article 102 TFEU to come the of a is by the that it is more be the for it is to at a to the be the and the and The is a in a that values legal by the Court in one a to its to the of its which it be to The of their is which is not to the it the of a of The is as a of what the of Article 102 TFEU what it is In to its as a in the the that the of the of EU competition law at is to a not to The of Article 102 TFEU is not to how are to on the to the and its The more modest is to the in which to in the with and are In Article 102 TFEU is different from the of which is to by to a how the is to In of its in case is around of the has to do with the that the to be with the of the same The however, is an of the it has a of The of the is to as a of the a that is as as the be to at a In the of a for an authority to the of the by the an be to at a the of the that is In the of a the is the the and the by a an be to at a The Court has consistently that an authority not on the to an to the legal be by and more in of the by the Court in an authority be to that a set of a the of the It is that the is not to the of Article 102 the of a is it will not to an that it an to at a The that is to an in does not the of the as an of has to do with the of the It is that it the of the are as as the This its and the that it the the of the is to the to a the and the This can be at the of In the of the the to the to the the and to and at on the of The case law what an is not is what an it is to a sense of the of the notion by at how the Court the in by to what it does and not much In it that a does not competition for as as the from for as as their and to is not the in does not exclusionary a in of to the is and has the in the The Commission to a interpretation in its the Court had not the at the of The that Article 102 TFEU can both and has the Court has not clarified the that as a of substantive the The of in and be as as the is not the notion of is it to the not to the of an of and one of are both with the of for one the are both from a legal and a The the the the substantive of Article 102 and the the to the The by the Court in its case law is not It has consistently to and as not of is of a different that a be capable of competition that it is for an authority to that is that the is not that in the of that be on the to set a It at a of around however, was in in that it be as a of that the is more than not to The by the in to be consistent with it to that are by a as the should in that Article 102 TFEU in the of competition are and that the of the to The that in has in of as the of the its and the of that the is by that it is to at the that the of is around not the of has not by the the which is a substantive is with the of which they are to the the of is the to be the of in is the has to the legal It is to substantive and they to different they are both expressed in of It is to to the of to the of a it is that of to In to the of they to the substantive of one takes the from the on Article 102 are to as the law be the This is in particular, because of the to that is to the The of a a of the of competition with and the the of competition that in the of the should in that the to the is in the of Article the that and 102 TFEU to the same it be difficult to that the exercise is under of the different to the of to a different to the notion of of and 102 In the Court in the of the the was not the for the of the of the to the was by the that the the of an In a the Article 102 TFEU could to the of competition that the the case it that are to the it is are of the one the that the from the is the that the not an to another it be to from the the of the do not for the of a of is to the to the of the Court had not The a sense of the and the the Commission’s ongoing the case law of the past decade has consistently signalled the to the meaningful of it is for the authority to the of the legal on its to its policy substantive standards could the meaningful of Article 102 It is from the that effective is and the the and in the case This with that are at the of the as an legal certainty and meaningful judicial review. The former that Article 102 TFEU is applied the The is consistent with the as the of EU law and as the of approach to the notion of that takes three enforcement, legal certainty and meaningful judicial is not to and the can be by key principles, which are and the substantive standards be administrable, that they can be applied both by the and by they be structured to and a sense of what to and the that to the by a authority be capable of being in not in in the It is submitted, in that one substantive legal that on that are always and and to substantive standards be a to ensure effective more to for the of the be the Court has not the notion of in the case law in a because of the the are what an authority that a is a of are how the in the case law as the of the and the of the in and how they are one The way to the in the case law in a manner that that the is to on that from the to in and by a of the that is The of is not in of the case law and the In the of Article 102 the Court in a to which a of the of a This was intended to to the in are in of The in has on in its The Guidelines on for on a as a the of the are and the of the does not that the from an are in relation to could be an effective to existing in the case In the in like and to the of for the of a which was as a in the of of the could be as a of the of a the and of the It is the a is the is its to it be to on the of at as a for their exclusionary one could that a one three the of the to the at with could be on be to from the of effective enforcement. The Commission a sense of what they to in relation to of the of in and not It is an approach that ensure that judicial the to the of to from one case to another on of the of the at the of a be more The be from the of legal be in a to the in is that has in years has to do with the and of legal in Article 102 It is to to the substantive of approach on structured tests, which around a set of that to be to an to the legal The three by the Court in as an in approach not on is in an than the of a the in the case law be that to be in the of an to the that one more are not in a not be for a of The as a be consistent with the of the of the in of the the exercise that judicial the in the case law as to be in It is not difficult to which the of an as it are to in structured legal effective more than like a set of and what the authority to what it does by contrast, they be to and the and that an authority however, a could in the as to for the standards for actors it is difficult to how legal tests, can ensure the of Article 102 TFEU the an interpretation of the in the of the legal The that to the of the substantive standards In the of law could be as a for to their structured are judicial is to the legal to an from one case to another is one that in the of the substantive standards to the and an which the to which are in a and which are is with judicial that is to of The of could be to at the of legal certainty and meaningful judicial review. as it be difficult to for a of a set of that is in always and is a legal This is because it does not the EU to in meaningful In with what has in the it for the exercise of judicial is the in the EU legal the approach the of a of the by the case the of be to from their and be by its the same an approach it for to the of the The of could a in several the of set at the of a of be a of to take In the of competition are by the of a the of the of a not be to and take the of by a In exclusionary could be always and In with what has it be difficult to interpretation of the notion of with the by the Court in to the it it for a to a of that the of a is one that a the system. it is that the substantive in an could be by to a of not be to it has by the the has in the Commission’s it has by the Court (hereinafter, is by the Michelin The that its could not be as its had the The Commission in the of the could The the of The in This approach to the of the of which it to an is on a of the notion of of and to what and to be by the interpretation of the to that Article 102 TFEU can be the more it the to which they are like a of more than that are more than that their has the that is the the be not because it it to exercise a of because it is at odds with the case of the that from the is that flexibility the is It has that the Court in that the is not always the which are can of be a competition authority is in of its a is to In the be that the are not the which of a in a should be a in the Commission’s the in not the of a to an the case for flexibility is one it to be in a way that does not It is submitted, that should be as it be for the that that the legal standards should not in a case to are a it be for the authority to in a the of the not be the be on it to it the are not the which the of a to is to be flexibility at the of and consistency legal one that the in of the is The of the case law on exclusionary abuses the past the Court has embraced an interpretation of Article 102 TFEU that on a of the of on are however, around how the of In the of the notion of to This is the which the Commission’s initiative in relation to exclusionary abuses be This paper has the that might effective enforcement, legal certainty and meaningful judicial review. the in the case law it to the three to the law and are several that can in is that the law should be administrable, that it does not an to the of Article 102 TFEU and can be by The case law could to It in particular, that the Court has of the of The of could address of the Commission’s the of the system. can the to which are and the more are a to is more the Court could a which is to the case law it that the of under Article 102 TFEU be and not on the that might the In the of the of a a The of the legal that be difficult to with of the case law in the same with effective judicial interpretation is the of a which with the case a of an in interpretation that the of a is one that of a of as of to an interpretation be not because it to at odds with the because it it for a to a of the Court a legal certainty and that it is to the consistency and to the to and to to the of are in which both interests can be approach on legal substantive standards that and that from one case to This is not to in the EU legal the to ensure that it is applied the It in to the of of law to the authority in in a to the which the of is approach is one that as a of on structured legal on a set of that an authority This it is as a of can as as the of the