Companies may get clearer guidance on when their behavior will be safe from prosecution under EU dominance-abuse law, as the European Commission continues to flesh out draft guidelines. Linsey McCallum, a senior official overseeing the policy review, said the European Commission would look again at the importance of such a “safe harbor,” following a consultation on an its initial draft. An EU judge said separately that the judiciary's caselaw on dominance abuse wasn't always "clear and coherent."
Companies may get clearer guidance on when their behavior will be safe from prosecution under EU dominance-abuse law, as the European Commission continues to flesh out draft guidelines. Linsey McCallum, a senior official overseeing the policy review, said the European Commission may have overlooked the importance of such a “safe harbor” in its initial draft and this would likely be revisited.
Last summer, the EU’s competition enforcer launched a review of how it enforces powerful rules against the misuse of market power. This law has led to billions of euros in fines on the likes of Microsoft, Qualcomm, Google and Intel.
The ongoing review will produce guidelines designed to help companies assess what kinds of conduct will attract the enforcer’s eye and how it will be prosecuted.
However, the August draft was criticized for removing prior mentions of a “safe harbor” that said companies with a market share below 40 percent were judged not to be dominant and therefore likely safe from prosecution.
Responding to a consultation on the draft, business groups and lawyers complained about the disappearance of this “soft safe harbor.” In its draft, the commission had dropped the threshold to 10 percent market share, including the reference in a footnote.
The commission has heard those concerns and will likely look again at this issue, McCallum, deputy director general for antitrust at the European Commission, said.
“One place where maybe we overlooked the importance of safe harbors was in our draft guidelines on exclusionary conduct,” she told a conference* in Washington DC.
“We're in our thinking period, and, yes, I think it is more likely than not that we'll want to look again at the safe harbor issue.”
The regulator has previously stated that it aims to adopt new guidelines by the end of this year. McCallum noted important judgments from the EU courts on major antitrust cases were expected this year and that could affect the timeline by a few months.
Speaking on a separate panel yesterday, Ulf Öberg, a judge at the EU’s lower-tier General Court, noted that the judiciary’s caselaw on dominance-abuse was “not always clear and coherent.”
“Don't blame the commission for trying to at least be clear what it is about to do and how it is going to apply the law in the future. I think that gives at least some form of predictability,” he said.
*American Bar Association Antitrust Spring Meeting 2025. Washington, DC. April 2-4, 2025.
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