The claim that the Guidance Paper on Article 102 TFEU has no binding effects on the EU Commission rests on fragile arguments which this ppt challenges. This finding may have implications for the future of the competition policy of the EU.

1. On the self-binding effect of the Article
102 TFEU Guidance in general, and of
the AEC test in particular
Prof. Nicolas Petit
University of Liege
Liege Competition and Innovation Institute (www.lcii.eu)
22 May 2016, Brussels

2. Issue
• EU Court precedent recognizes that Commission soft law creates “self
binding effects” (see O. Stefan, Soft Law in Court – Competition Law, State
Aid and the Court of Justice of The European Union,2013)
• But doubts have been expressed in relation to the 2009
Communication on Exclusionary Abuses in general, and on the AEC
test in particular

3. Disentangling the argument
#1: Text says priority, not legality
• “The Priorities Paper clearly states
that it is not meant to provide a test
for assessing whether or not
exclusionary conduct violates Article
102 TFEU (legality test), but only a
test to be used by the Commission to
determine, in the context of its
priority setting, whether or not a case
would be a priority case
(prioritisation test)”
#2: Type II (gap) problem
• “Because the Commission cannot
regard as excluded in principle from
its purview certain situations which
come under its task of enforcing
Articles 101 and 102 TFEU, such
guidance must not be treated as rules
to be applied automatically, but must
allow consideration of the merits of
each case.”

4. Argument n°1
Content prevails over form
• Binderer v Commission: “the choice
of form cannot alter the nature of a
measure”
• J. Scott, “In Legal Limbo: Post-
legislative Guidance as a
Challenge for European
Administrative Law” (2011)
Common Market Law Review 48,
329
Legality v priority is reductionist
• Dansk Rørindustri: “although those
measures may not be regarded as rules
of law which the administration is
always bound to observe, they
nevertheless form rules of practice
from which the administration may
not depart in an individual case.”

5. Prelim. finding
• Soft law conveys “rules of practice”
• Rules of practice create “self
binding effects”
• Rationales include legitimate
expectations, equal treatment,
estoppel (patere legem quam ipse
fecisti), etc.
• No reason to exclude that
Guidance and AEC test are a rule
of practice
• AG Kokkott in Post Danmark II:
“In its enforcement priorities, … the
Commission undertook to carry out,
as a rule, an AEC test in connection
with price-based exclusionary conduct.
Such an administrative practice by
the Commission is not, of course,
binding on the national competition
authorities and courts, however”

6. Argument n°2
• Case C-351/98, Spain v Commission, mutatis mutandis
• Commission can leave some State aid out of its purview by deciding “in the
exercise of its discretion to assess the possible economic effects of aid” that some
aid “does not affect trade and is therefore not caught by Articles 92 and 93 of the
Treaty”.
• When it does so, it is “bound by the guidelines and notices that it issues”
• Here, aid exonerated under De minimis notice of
• CJEU holds that third parties can rely on it, regardless of type II problem
• Prioritisation spirit of De Minimis Notice: “… in an effort to reduce the
administrative burden on the Member States and on the Commission itself - which
ought to be left to concentrate its resources on cases of real importance to the
Community - and in order to simplify matters for SMEs, the Commission introduced
what is known as a de minimis rule”

7. Argument n°2, Cont’d
• Guidance paper allows consideration of merits of cases, and plugs type
II problem
• Paragraph 24: “the Commission recognises that in certain circumstances a less
efficient competitor may also exert a constraint which should be taken into
account when considering whether particular price-based conduct leads to anti-
competitive foreclosure. The Commission will take a dynamic view of that
constraint, given that in the absence of an abusive practice such a competitor
may benefit from demand-related advantages, such as network and learning
effects, which will tend to enhance its efficiency”

8. Bottom line
• Commission should be deemed, in positive law, under a duty to apply
the chosen Guidance Paper AEC tool prior to deciding whether or not
to pursue a pricing abuse
• Commission may exceptionally depart from a rule of practice, and it is
in this case bound to give reasons and the Court will verify if they are
justified and supported by sufficient legal reasoning

9. Sources
• O. Stefan, Soft Law in Court – Competition Law, State Aid and the Court of Justice
of The European Union, (Alphen aan den Rijn, Kluwer, 2013), in particular,
Chapter 6
• J. Scott, “In Legal Limbo: Post-legislative Guidance as a Challenge for
European Administrative Law” (2011) Common Market Law Review 48, 329
• N. Petit, “Rebates and article 102 TFEU: The European Commission’s duty
to apply the guidance paper”, Competition Law & Policy Debate, Volume 2,
Issue 1, March 2016, 4
• W. Wils, “The Judgment of the EU General Court in Intel and the So-Called
'More Economic Approach' to Abuse of Dominance” (2014) 77 World
Competition: Law and Economics Review 4, 405
• W. Wils, “Discretion and Prioritisation in Public Antitrust Enforcement”,
(2011) 34 World Competition: Law and Economics Review 3, 353