EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

3. Key principles of the Guidelines The Guidelines consist of 24 Articles divided into 6 Chapters. They cover general principles and market definition, specify what can constitute unlawful monopoly agreements and abuse of market dominance, expand on the rules applicable to concentrations of business operators, provide details on practices constituting abuse of administrative power by government bodies, and addresses ancillary matters such as the interpretation of the Guidelines. Below mentioned are some of the most noteworthy provisions. First, the Guidelines suggest a departure from a strict insistence on a precise market definition in antitrust cases. The initial version of the Guidelines released for discussion suggested an extreme overhaul. It stipulated that in some cases, no formal definition of relevant market needs to be provided if sufficient direct evidence exists for a finding that the conduct in question was non-transitory and the harms involved were clear. Following a public consultation, this extreme language has been abandoned. Yet, the adopted version seems to keep the backdoor open to evade market definition in some cases. Article 4(3) of the Guidelines states that “a case-by-case analysis principle will be adhered to, where the actual need for definition of the relevant market will differ for differing case types. For investigation of monopolistic agreements and abuse of dominant market position cases in the platform sphere, and for merger reviews, a definition of the relevant market will normally be required.” The phrase “normally required” suggests that it will not be required in all cases. Smithurts hypothesizes that softer language may be the result of the fact that all changes to legislation, i.e., here the AML which expects market definition in all cases, require measures with the status of law, and cannot be amended by regulatory acts such as the Guidelines (Smithurts 2021, p. 644). The “softened” approach to market definition is probably a response to difficulties in defining relevant markets in platform cases which usually involve two or more different but interlinked markets. Article 4(1) of the Guidelines explicitly mentions that the relevant product market can be defined based on the products on one side of the platform, which requires consideration of the interrelation and influence of the other side of the platform, or based on the platform as a whole. The Guidelines also provide notable examples of what may be considered an abuse of dominance in platformmarkets. For instance, Article 15 of the Guidelines makes clear that where a platform requires merchants to sell exclusively on the platform as a condition of operating on it, this can constitute an abuse of dominance. Forcing counterparties to enter into transactions with specific merchants or via restricted channels can also be considered abusive. In assessing whether the platform engaged in that conduct, the enforcement agency (i.e., State Administration for Market Regulation, or SAMR) shall examine whether the platform adopted

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