On 3 December 2008, the European Commission published guidance on its Article 82 enforcement priorities in relation to abusive exclusionary conduct by dominant undertakings. Through this guidance, the Commission has indicated that it will prioritise cases where there are likely to be harmful effects for consumers, rather than for other competitors.

The economic and effects-based approach set out in the guidance reflects Commission practice in recent Article 82 cases, such as those against Microsoft and Wanadoo. However, it is the first time the business community and national competition law authorities have been given detailed guidance as to the Commission’s preferred approach.

The guidance applies to scenarios involving a single dominant undertaking. It applies to all forms of exclusionary conduct covered by Article 82, such as exclusive dealing, tying and bundling, refusal to supply and predatory pricing. The Commission intends to fully apply the guidance to future Article 82 cases.