Competition analysis: The Commission’s Article 102 Guidelines restate what has, due to the adoption by the Court of Justice of the ‘economic approach’ to competition law, become a very complex field. The Guidelines explain when an undertaking might be considered dominant and when its conduct might infringe Article 102 by reason of it departing from competition on the merits and being capable of having exclusionary effects. Specific guidance is given on the assessment of six different commonly encountered types of exclusionary conduct. Guidance given by the CMA in 2004 on this topic is limited and outdated and the Guidelines are therefore likely to be persuasive as to the interpretation of the Chapter II prohibition, the equivalent UK law provision, although they cannot be binding on UK courts. Nicholas Khan KC, of Monckton Chambers practises in competition law, after having been for many years a member of the European Commission’s Legal Service, where he represented the Commission in a number of the leading Article 102 cases referred to in the Guidelines. All views are however personal and not those of the Commission.
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