Article 102 TFEU prohibits abuses of a dominant position. In accordance with the case law, it is not in itself illegal for a company to be in a dominant position and such a dominant company is entitled to compete on the merits. However, the company concerned has a special responsibility not to allow its conduct to impair genuine undistorted competition on the common market.

 

In the notification the European Commission explains the priority in the application of Article 102 TFEU in cases of exclusionary conduct by a company with a dominant position. The notice should help companies and their advisors to better assess whether certain behavior is likely to result in intervention by the Commission under Article 102 TFEU.

 

In applying Article 102 TFEU to exclusionary conduct by dominant undertakings, the Commission will focus on those types of conduct that are most harmful to consumers. Consumers benefit from competition through lower prices, better quality and a wider choice of new or improved goods and services. The Commission, therefore, will direct its enforcement to ensure that the market functions properly and that consumers benefit from the efficiency and productivity which result from effective competition between companies. The emphasis of the Commission's enforcement activity in relation to exclusionary conduct is on safeguarding the competitive process in the internal market and ensuring that companies, which hold a dominant position, do not exclude their competitors by other means than competing on the merits of the products or services they provide. In doing so the Commission is mindful that what really matters is protecting an effective competitive process and not simply protecting competitors. This may well mean that competitors who deliver less to consumers in terms of price, choice, quality and innovation will leave the market.