The Article 102 Guidance Paper : still alive ?
When the then-Commissioner Neelie Kroes announced a detailed review of the enforcement of Article 102 TFEU, one expected that the exercise would result in the issuance of Guidelines on the application of Article 102 TFEU to exclusionary abuses. However, the much-awaited “Guidelines” ultimately turned into a document called “Guidance Paper” and setting out the Commission’s enforcement priorities. It is understood that this change of approach emanated from pressure exercised, in particular by the Commission’s Legal Service and a number of national competition authorities. Today, the Commission rarely, if ever, relies upon the Guidance Paper.
Does this mean that the Guidance Paper shall be considered as irrelevant in EU competition law ?
According to Trevor Soames, that cannot be. Trevor navigated the website of DG Comp and pointed to the section “Legislation in force” which lists “instruments which are currently in force”. This list includes the Guidance Paper.