In this seminar Professor Ioannis Lianos examines recent developments in EU competition law regarding exclusionary abuses under Article 102 TFEU. Drawing on current case law from EU courts, decisional practice from the European Commission and national competition authorities, and the Commission's Draft Guidelines, we will analyze the evolving, more nuanced approach to assessing exclusionary conduct.
Ioannis Lianos is Professor of Global Competition Law and Public Policy at University College London, Faculty of Laws, where he has been teaching since 2005. He is ordinary member of the UK Competition Appeal Tribunal. He was President of the Hellenic Competition Commission from August 2019 to December 2023. Ioannis was elected a member of the Bureau of the OECD Competition Committee in 2021 and re-elected in 2022 and 2023.
The interpretation of Article 102 TFEU has been a subject of significant academic and professional commentary for decades, yet it continues to elicit robust debate within competition law circles. This debate has again gained traction in recent years and will increasingly be doing so in the next few months at least, while the Commission engages in its effort to issue Guidelines on Article 102 TFEU. With its Priority Guidance in 2009 the Commission has been focusing on exclusionary abuses, largely aiming to develop a comprehensive framework that would move away from its past ‘formalistic’ interpretation of Article 102 TFEU, in favour of a more ‘effects-based’ approach, a transition that has drawn both praise and severe criticism. With its projected Guidelines on exclusionary abuses fifteen years later the Commission aims, during this second phase of Article 102 reform, to correct the previous ‘more economic approach' and adopt a ‘workable effects-based approach’. This swung of the pendulum raises interesting questions about whether economic theory alone (or even one overarching ethical value, such as economic efficiency/wealth maximization) can provide an adequate theoretical foundation for analysing exclusionary (or even exploitative) practices.
Our focus in the seminar will encompass key areas of abuse including naked restrictions, exclusive dealing arrangements, conditional rebates, tying practices, refusal to deal or provide interoperability, self-preferencing, competitor denigration, and intellectual property-related abuses such as strategic exclusionary patenting.
The seminar will then explore an emerging pragmatic framework in Article 102 interpretation that, in our assessment, offers a more pluralistic approach to evaluating anticompetitive unilateral conduct than the traditional 'more economic approach'. We will examine critical issues including the burden of proof and evidentiary standards, the application and probative value of economic tests (such as the AEC test and replicability test), and the mechanisms by which presumptions or inferences derived from these economic tests may be challenged or rebutted.
The Seminar is free of charge and will take place at Stockholms Centre of Commercial Law (SCCL), Stockholm University, Friscati campus.
Introductory article(s) that will be provided upon registration:
The Emergence of an Epithet in EU Competition Law: "Naked Restrictions" and Article 102 TFEU by Ioannis Lianos
Comments on Draft Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings by Giorgio Monti
How to Fix a Failing Art. 102 TFEU: Substantive Interpretation, Evidentiary Requirements, and the Commission’s Future Guidelines on Exclusionary Abuses | Journal of European Competition Law & Practice | Oxford Academic by Heike Schweitzer and Simon de Ridder