Members of the ECN express support for the EU Commission's Guidelines on the application of Article 102 TFEU concerning exclusionary practices by dominant companies. This approach will make it easier to apply the rules on abuse of dominant position throughout the Union, ensuring effective enforcement of competition law.

National competition authorities within the ECN actively participated in drafting the Guidelines, a significant step towards a effects-based approach to Article 102 TFEU. While not legally binding, the Guidelines can enhance legal certainty and promote consistent application of Article 102 TFEU regarding exclusionary practices by dominant companies.

According to the draft Guidelines, ECN members believe that the concept of exclusionary abuse under Article 102 TFEU covers various behaviors that disrupt effective competition to the detriment of the public interest, other market participants, and consumers.

ECN also emphasizes that the ability of a certain behavior to have exclusionary effects can be demonstrated using various qualitative and quantitative tools, depending on the specifics of each case, in line with EU court case law. In this context, ECN notes that to ensure effective and deterrent enforcement of Article 102 TFEU, the burden of proof related to demonstrating exclusionary effects must be proportionate to the likelihood of harm caused by the behavior.

Therefore, ECN agrees with the interpretation of EU court case law included in the draft Guidelines regarding the existence of legal presumptions for certain types of practices with a high potential for exclusionary effects or inherently capable of causing them.