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The (growing) role of the Guidance Paper on exclusionary abuses in the case law: the legal and the non-legal

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EMAs Trial Master File Guidance Is In Effect Does Your TMF Measure Up

The most recent developments on exclusionary abuses suggest that the reports of the demise of the Guidance Paper on exclusionary abuses might have been exaggerated. Just when we thought that it might have fallen out of favour, it has been cited in AG Rantos’s Opinion in Servizio Elettrico and by the General Court in its Intel renvoi.

These references might seem surprising at first glance. After all, the Guidance Paper is not, and was never intended to be, a statement of the law. It is for the Court of Justice, not the Commission, to interpret the scope of Article 102 TFEU. Why, then, the references to the instrument? I can think of a number of legal and non-legal reasons.

The legal: pre-commitment devices and good administration

A point that transpires clearly from a reading of the Intel renvoi is that, while the Guidance is not a statement of the law, it is not devoid of effects, either. We have long known that soft law instruments bind the authority that has issued them. Suffice it to think in this regard of the de minimis Notice (as explained by the Court in Expedia; and by Alfonso in a number of posts, such as this one).

The above is a logical and necessary corollary to the principle of good administration: if a public authority has publicly announced that it will exercise its powers in a certain way, it is reasonable to expect that its subsequent behaviour will follow the position stated in the relevant instrument (irrespective of whether it is a form of ‘soft’ or ‘hard’ law). And it is likely that review judges will assume that an administrative authority will keep its word in its dealings with individuals.

In the specific context of the Guidance, it is reasonable to anticipate that the Commission will follow the approach to the prioritisation of cases that is enshrined in the document. If there was any doubt: this fact does not mean that the Commission can never depart from the Guidance. It simply means that, if it ever prioritises a case in accordance with a different set of criteria, its decision must at least explain the reasons why it is following another approach.

The non-legal: a good, concise document that captures the case law and the expert consensus

The above is certainly relevant, but I do not believe it tells the whole story. Reading the Intel renvoi and AG Rantos’s’ Opinion in Servizio Elettrico suggests that the reasons behing the rising prominence of the Guidance Paper in the case law go beyond the strictly legal.

Arguably, the main reasons are in fact non-legal. I can think of three interrelated ones. The Guidance Paper is, first and foremost, a very good policy document. It is concise, clear and useful for courts. It provides the right amount of detail in an orderly way.

What is more, the Guidance Paper is very much in line with the case law as it has evolved since Post Danmark I. As the Intel saga shows, the criteria to assess foreclosure, as laid down in the relevant judgments, is aligned with para 20 (extent of the dominant position, coverage of the practice, features of the relevant market, evidence of actual effects and possible foreclosure strategy).

As far as price-based conduct is concerned, the approach proposed in paras 23-27 faithfully reflects the consistent case law since Deutsche Telekom and TeliaSonera all the way to Post Danmark II and Intel (not only because of the cost benchmarks proposed, but also in relation to the ‘as efficient competitor’ principle and the potential exceptions to the principle that might arise in a given economic and legal context).

Finally, the Guidance Paper captures the expert consensus. Its primary purpose was in fact to bring the Commission’s practice in line with mainstream economics. And if there is something that my research has taught me, it is that the Court of Justice has consistently crafted the law around the expert consensus. The latter is, in fact, a key constraint on administrative action in the context of Article 102 TFEU. From this perspective, the Guidance could be seen as a digest of mainstream positions and, as such, the sort of document that review courts are likely to cite.

Written by Pablo Ibanez Colomo

9 February 2022 at 11:28 am

Posted in Uncategorized

4 Responses

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  1. Wasn’t the guidance paper overtaken by the Court’s Glaxo Smith Kline judgement?

    Tim Cowen

    9 February 2022 at 12:41 pm

    • Thanks, Tim!

      Are you referring to the Generics judgment of January 2020? If so, I am curious to know what you mean when you say it was overturned. Thanks again!

      Pablo Ibanez Colomo

      9 February 2022 at 1:23 pm

  2. Dear Pablo, you could also have mentioned that the General Court refers to the Guidance Paper in para 443 of the Google Shopping judgment.
    I fully agree with your post and as one of its authors do not object to your characterisation of the Guidance Paper as “a very good policy document”. In my presentation on the recent Intel judgment at the GCLC Lunch talk on 2 February I also made the point that the Guidance Paper inspired the case law to such an extent to incorporate its effects-based approach that indeed by now the Guidance Paper is very much in line with the case law. In addition to the convergence you mentioned, one could add that the CoJ, in Post Danmark I, also took over the objective necessity and efficiency test of para 28-31 of the Guidance Paper. I concluded that as a result there is not much that prevents the Commission to turn the Guidance Paper into Commission Guidelines (see slide 6 at https://www.coleurope.eu/research/global-competition-law-centre/lunch-talk-series ).

    Luc Peeperkorn

    9 February 2022 at 3:14 pm

    • Thanks for sharing the presentation, Luc!

      Pablo Ibanez Colomo

      9 February 2022 at 5:21 pm


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