Ambiguity: Legal Certainty in the Draft Guidelines on Article 102 TFEU

The paper critically examines the European Commission’s 2024 draft Guidelines on the Application of Article 102 TFEU, focusing on their stated objective of enhancing legal certainty in the enforcement of EU competition law. The analysis addresses four core dimensions: the Commission’s drafting technique and reliance on case law quotations; the reformulation of the constituent elements of exclusionary abuse; the relationship between general legal principles and specific liability tests; and the newly introduced classification of exclusionary conduct. While the Guidelines provide clarity in some areas—particularly regarding the evidentiary role of established tests—they fall short of offering a coherent and principled analytical framework. In particular, the concept of “competition on the merits”, though central to the new structure, remains ambiguous and risks undermining predictability. The paper argues that a more structured and transparent interpretive approach is needed to ensure the legitimacy and intelligibility of art.102 enforcement.