The (second) modernisation of Article 102 TFEU: reconciling effective enforcement, legal certainty and meaningful judicial review

In March 2023, the European Commission (hereinafter, the ‘Commission’) launched an initiative that will ultimately lead to the adoption of a set of Guidelines on exclusionary abuses.1 The announcement gives veteran EU competition lawyers a sense of déjà-vu. Back in 2005, the authority released a Discussion Paper on Article 102 TFEU,2 which paved the way for publication of the so-called Guidance three years later.3 It does not take much scratching beneath the surface, however, to realise how different both exercises are. The (future) Guidelines on exclusionary abuses are destined to be more ambitious than their predecessor. The Guidance Paper was always conceived and presented as a modest attempt to explain how the authority intended to exercise its discretion.4 The Commission clarified that it could not be construed as an interpretation of the notion of abuse.5 The declared goal of the ongoing initiative, by contrast, is to codify existing case law.6