The Reform of the Application of Article 102 TFEU: Mission Accomplished?

This article examines the European Commission’s recent reform of its application of Article 102 TFEU (the prohibition of abuse of dominance). Using the Commission’s own reform documents and in particular the Guidance on enforcement priorities as the benchmark, the article investigates the post-reform decisions to establish the potential impact of the reform. Thus, the article analyses whether the application of Article 102 has indeed been reformed as a matter of fact (which in this context refers to the Commission’s decisional practice under Article 102) in line with the Commission’s aspirations and rhetoric. The study leads to several significant findings. Specifically, it finds that: the Commission has become considerably more active post-Guidance (2009-2014) in comparison to the period between the publication of DG Competition’s Discussion Paper and the publication of the Guidance (2005-2009); commitments make up half of all decisions taken in the period 2005-2014 and have quadrupled in number since the Guidance paper; there is little to no explicit use of the Guidance in the decisions taken; and, the rejection decisions are potentially the most important type of enforcement in which the effects of any modernisation of the approach to Article 102 can be observed