The European Competition Network (ECN) has expressed its support for the European Commission's initiative to adopt guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings. The ECN has actively participated in the development of these guidelines, viewing them as a crucial step towards implementing an effects-based approach to Article 102 TFEU for more effective enforcement.

The draft Guidelines, although not legally binding on National Competition Authorities, are seen by the ECN as a means to enhance legal certainty and promote consistent enforcement of Article 102 TFEU in cases of exclusionary conduct by dominant companies.

According to the ECN, abusive exclusionary behavior under Article 102 TFEU covers various actions that distort competition, harming the public interest, other market players, and consumers. The ECN believes that the ability of a certain conduct to lead to exclusionary effects can be proven using different qualitative and quantitative methods, depending on the specific circumstances, in line with EU Courts' case law.

The ECN emphasizes the importance of ensuring that the evidentiary burden for demonstrating exclusionary effects is proportionate to the potential harm caused. It supports the draft Guidelines' interpretation of EU Courts' case law, particularly regarding legal presumptions related to conduct with a high likelihood of producing exclusionary effects.