The European Commission's draft guidelines on exclusionary abuses: a law and economics critique and recommendations.

We welcome the prospect of Guidelines on Article 102 TFEU and endorse the stated aims of the Draft Guidelines (ie, enhancing legal certainty, helping undertakings to self-assess, and guiding the National Courts and National Competition Authorities). From an economics perspective, we also welcome the possible use of rebuttable presumptions for certain practices, but not for others (eg, tying). Further, the approach of the Draft Guidelines to presumptions seems to imply a reversal of the burden of proof, which the EU Courts might arguably not accept. The Draft Guidelines move away from an economic, effects-based approach and do not fully acknowledge or embrace the modern legal approach of the EU Courts to Article 102 TFEU and lack clarity in many respects. Consequently, the Draft Guidelines offer limited guidance. The Draft Guidelines can be improved by: connecting the concept of ‘competition on the merits’ to harm to consumers; incorporating central concepts such as ‘theory of harm’; paying more than mere lip service to the ‘as efficient competitor’ principle; introducing safe harbours; and, offering clarifications on the scope of certain presumptions and their rebuttal.