Has the Turning Point Been Missed? Exclusivity Payments Granted by Dominant Undertakings in the Light of the Enforcement Priorities Guidance

Abstract

For many years, exclusivity payments and its specific type – loyalty rebates – were treated by the European Commission (Commission) as restrictions by object. This approach has been gradually revised towards a more effect-based reasoning. In the Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (Guidance), the Commission demonstrated its willingness to follow the so-called ‘economic approach’. In particular, the Commission announced that for price-based exclusionary conduct the so-called ‘as-efficient competitor’ test (AEC test) is going to be used. This article aims to verify whether the Commission followed the Guidance in its assessment of exclusionary practices in two cases, Qualcomm and Google (Android), considered by the Author as an opportunity to make a move from a form-based to an economic-based approach. In his considerations, the Author provides proposals on how the practice of the Commission should be changed to ensure dominant undertakings are provided with a sufficient level of legal certainty.

Keywords

• competition law
• dominant position
• abuse of dominant position
• exclusivity
• as-efficient competitor test