In the beginning of August, the European Commission published its Draft Guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union to abusive exclusionary conduct by dominant undertakings. The Draft Guidelines aim at moving forward the European Commission’s enforcement policy in the sphere of Article 102 TFEU for exclusionary conduct (abuse of dominance), which remains, to date, largely based on the regulator’s Guidance from 2008 and of course subsequent developments by the European Courts’ case-law.
One development foreseen in the Guidelines is the inclusion of the so-called naked restrictions, a conduct of the dominant undertaking capable of producing exclusionary effects. In general, naked restrictions refer to certain types of conduct by a dominant undertaking with no economic interest for the undertaking but to restrict competition. Although competition authorities within the EU Member States have rarely relied on this type of restrictions as a theory of harm, at the end of August, a dominant undertaking within the pharmaceutical sector was alleged of such abuse of its dominance by the Greek national competition authority. The undertaking has been claimed to have delayed the entry of a new medical treatment or to have ensured the ban or discontinuation of the use of current treatments to exclude its rivals and increase prescriptions of its own products.
With its Draft Guidelines, the European Commission has recognised conduct such as payments by the dominant undertaking to customers that are conditional on the customers postponing or cancelling the launch of products that are based on products offered by the dominant undertaking’s competitors as an example of naked restrictions. In its allegations concerning the conduct of the dominant undertaking within the pharmaceutical sector, the national competition authority claimed that the undertaking incentivised doctors and hospitals with direct or indirect payments and other benefits such as donations. In addition to these alleged naked restrictions, the undertaking has also been alleged to have disseminated defamatory claims to exclude competing products, a conduct investigated as anticompetitive also previously by the European Commission within the pharmaceutical market.
It remains to be seen whether the future developments in the European Commission’s Guidelines as well as the alleged conducts by the dominant undertakings in different markets will lead to increasing attention towards naked restrictions and their sanctioning under the competition rules in the EU. The Commission is planning to finalise the Draft Guidelines on the basis of the current public consultation in the course of 2025.
