Revamped EU antitrust rules make exceptions for sustainable companies

By Foo Yun Chee

BRUSSELS, Sept 3 (Reuters) – Companies at risk of penalties for being anti-competitive may be able to justify their dominance if their business practices are sustainable, EU regulators said on Thursday in revised guidelines.

The Commission, which acts as the European Union’s competition enforcer, considers a company to be dominant if it has a more than 40% share of the market.

Using that dominance to squeeze rivals could be acceptable, the Commission said on Thursday, if it ensures reduced use of raw materials, produces less pollution or leads to increased use of recyclable products and makes supply chains more resilient.

Enabling cost-savings for consumers would also be taken into consideration, according to the revised EU antitrust guidelines.

They relate to Article 102, one of the European Commission’s most powerful tools that has resulted in hefty fines for Apple, Google and Microsoft in recent years after EU authorities found they had used  their market power to thwart rivals.

The revised guidelines also aim to help companies assess whether they are dominant and, if so, in which markets.

Academics and other analysts were critical of the new approach.

A group of 28 leading academics and economists including former senior Commission economists in a joint open letter to Commission President Ursula von der Leyen and EU antitrust chief Teresa Ribera said the rules could be exploited to justify unfair dominance.

The guidelines “introduce presumptions and analytical shortcuts that do not distinguish appropriately between anti-competitive conduct and pro-competitive conduct that reflects business acumen, superior skill, or efficiency by dominant firms,” the letter said. 

(Reporting by Foo Yun Chee; editing by Barbara Lewis)