The risks of a form-based approach to exclusionary abuses of dominance – an economic perspective

The European Commission has initiated the process of changing how exclusionary abuses of dominance are evaluated, moving towards a more ‘form-based’ approach compared to the current ‘effects-based’ approach. This article explains that, if not implemented correctly, its planned approach risks worsening consumer outcomes. This article outlines the Commission’s existing approach to taking enforcement action against exclusionary abuses, and the two actions taken by the Commission to develop this approach. Then, it explores three cases where the false positives that arise from a form-based approach, rather than an effects-based approach, risk worsening outcomes for consumers. It suggests that, while an effects-based approach has its limitations, the Commission should ensure that it does not err too far into adopting a completely form-based approach as it develops updated rules on exclusionary abuses.