Abuse of dominance: has the effects-based analysis gone too far?

In 2008, following a long period of a so-called ‘formalistic’ approach to competition law, the European Commission adopted a more economic, effects-based, approach to the analysis of abuses of a dominant position. This included the use of an as-efficient competitor (AEC) test for price-based exclusionary conduct. However, more recently the EC warned about an overly rigid implementation of the effects-based approach. Moreover, in the period after 2008, the Commission and national authorities started to prioritize cases in digital markets, for which some of the concepts adopted in 2008 were less suitable. This ultimately led to the introduction of ex ante regulation of certain digital services in the Digital Markets Act. Against this background, the article seeks to answer whether the Commission did indeed pursue an effects-based analysis after 2008, whether this approach was responsible for the length of investigations and the Commission’s inability to deliver meaningful outcomes, whether ex ante regulation is a helpful response to these difficulties, and how the Commission should address the criticisms against the ineffectiveness of its enforcement of the prohibition against abuse of a dominant position.