What do the EU's New Draft Guidelines on the Application of Article 102 TFEU mean for Africa-Europe Competition Policy?
Introduction
One of the core debates in modern competition law is whether the enforcement of competition law and, in this instance, abuse of dominance rules should prioritize economic efficiency or integrate broader social and environmental goals. For decades, the global standard for assessing abuse of dominance has evolved towards the effects-based approach. Under this analytical framework, the possession of market power is not itself unlawful; rather, it is the deployment of that power to foreclose competition or exploit consumers that attracts liability. Hence, the common understanding is that holding a position of dominance is not the issue, but rather an abuse of the dominant position. To prove abuse, competition authorities were required to demonstrate actual anti-competitive effects, not just point to the form of conduct. This logic, crystallized in landmark European Union (EU) court rulings, such as Intel (C-413/14 P) and subsequently developed in Unilever Italia (C-680/20) and SEN (C-3770/20) [1], provided a predictable framework for businesses worldwide.
This took a different turn in late 2024 when the European Commission published draft Guidelines that signalled a significant recalibration of its enforcement approach. The Draft Guidelines on the application of Article 102 TFEU, published in August 2024 for public consultation, propose a framework that moves away from the effects-based orientation of the 2009 Guidance Paper toward a system of categorised legal presumptions[2]. This shift is not merely a bureaucratic update; it is a material change in how dominant firms' conduct is assessed, though the extent to which it reflects or departs from the Court of Justice's own case law remains deeply contested. The Draft Guidelines propose a two-stage inquiry for exclusionary abuse. First, whether the conduct departs from competition on the merits, and second, whether it is capable of producing exclusionary effects. This formulation, as discussed below, subtly lowers the evidentiary threshold from the proof of actual effects.
It is important to note that the Draft Guidelines are themselves a contested instrument. Legal and economic scholars have raised fundamental objections. Some argue that the Draft Guidelines purport to codify the case law but subtly and significantly depart from it, particularly through a selective reading of precedent that reads in presumptions of illegality while reading out effects analysis[3]. Others welcome the prospect of rebuttable presumptions for certain practices, but caution that the approach implies a reversal of the burden of proof that EU Courts may not accept[4]. Meanwhile, practitioners have criticised the Draft Guidelines as a disappointing retreat from the effects-based framework of the 2009 Guidance Paper, reasserting form-based categories over economic substance[5]. This internal contestation within the EU is directly relevant for African regulators, as if there is any need to borrow from the EU, they would be importing a framework that is far from settled, even in its home jurisdiction.
For African competition authorities, many of which are currently drafting their own guidelines or preparing for the operationalization of the AfCFTA Competition Protocol — adopted by the AU Assembly in February 2023 and now open for ratification[6], this European development poses a critical question: Is the EU's new presumption-heavy model a useful tool for efficient enforcement in developing markets, or is it a formalistic framework that could stifle the very competition Africa needs?
The European Context: Why the Pivot?
To understand the Draft Guidelines, one must understand the Commission's enforcement record. For years, the Directorate-General for Competition (DG Comp) struggled to sustain abuse of dominance cases against Big Tech and industrial incumbents before the EU Courts. Cases like Intel, Qualcomm, and more recently Google Shopping dragged on for over a decade, bogged down by the "as-efficient competitor" (AEC) test—an economic standard requiring proof that a hypothetical rival as efficient as the dominant firm would be unable to compete profitably.
The Draft Guidelines are a direct response to this pattern of enforcement setbacks. They introduce a categorization of conduct that significantly restructures the analytical framework and, in practice, lowers the evidentiary threshold for finding an infringement:
- Naked Restrictions: Conduct with no plausible economic rationale other than restricting competition (e.g., paying a customer to delay a rival's product launch). Under the Draft Guidelines, this is treated almost like a cartel violation—illegal by object, with no need to prove effects. This category is the least controversial and enjoys broad support among commentators.
- Presumptively Abusive Conduct: For classic abuses like exclusive dealing, predatory pricing (below cost pricing), and certain loyalty rebates, the Commission now presumes anticompetitive capability. The burden effectively shifts to the dominant firm to demonstrate that the conduct is justified or creates efficiencies. It is this category that has attracted the most criticism. Some economists argue that rebuttable presumptions are inappropriate for practices such as tying, where the welfare effects are ambiguous and context dependent[7].
- Specific Effects Analysis: Only for novel or ambiguous conduct (like self-preferencing in digital ecosystems) does the Commission retain the full burden of proving anti-competitive effects.
This presumption-first approach is administratively attractive. It promises faster decisions and arguably greater deterrence. But as European legal scholars have pointed out, it risks contradicting the European Court of Justice's jurisprudence, particularly in Intel, Unilever, and SEN, which insists that competition on the merits must be protected and that dominant firms' conduct must be assessed by reference to its actual or likely effects on the competitive structure of the market, even where that conduct harms less efficient rivals.
The Draft Guidelines should also be understood within the EU's broader regulatory turn. The adoption of the Digital Markets Act (DMA) in 2022, which imposes ex ante per se obligations on designated gatekeepers, including prohibitions on self-preferencing, tying, and restrictions on data portability, has partially absorbed the enforcement burden that Article 102 previously bore in digital markets. The Draft Guidelines' shift toward presumptions can be read, in part, as an attempt to extend a similar regulatory logic from the DMA's ex ante space into Article 102's ex post enforcement domain.
For African regulators considering the EU model, this context matters. The EU can afford to rely more heavily on presumptions in its Article 102 enforcement precisely because the DMA now provides a complementary and parallel enforcement track. African jurisdictions, which lack an equivalent ex ante regime for digital markets, may find that importing Article 102 presumptions without the DMA's accompanying framework leaves significant enforcement gaps or, conversely, places disproportionate weight on a single instrument.
The African Reality: Development, Dominance, and Deadlines
While Brussels debates legal theory, African competition authorities face a different reality. Markets in the region are often highly concentrated, not due to superior innovation, but due to historical state monopolies, infrastructure bottlenecks, or small market sizes that support only one or two players.
In this context, African regulators like the Competition Commission of South Africa (CCSA), the Competition Authority of Kenya (CAK), and the institutions contemplated under the AfCFTA Competition Protocol are tasked with a dual mandate, protecting consumer welfare and promoting public interest goals like market access for SMEs and historically disadvantaged persons.
This difference in mandate makes the EU's Draft Guidelines a complicated precedent.
The Appeal of Presumptions for Resource-Constrained Agencies
African authorities are often resource-constrained and sometimes lack institutional capacity. Investigating a margin squeeze case requires forensic accountants and economists that many agencies cannot afford. In this light, the EU's shift to presumptions is tempting. Adopting a rule that says exclusive dealing by a dominant firm is presumed abusive would drastically reduce the cost and time of enforcement for an agency like the COMESA Competition Commission.
However, there is a danger. The EU's presumptions are built on the assumption of a mature market where dominance is typically the product of strategic conduct rather than structural necessity, and entrants are robust. In many African sectors, like the telecoms industry, dominance is structural. A rigid presumption against exclusive dealing, for example, might prevent a dominant firm from making the necessary investments to build a distribution network in a rural area, simply because it cannot demand exclusivity to recoup that investment.
Effect of Abandoning the AEC Test
The EU Draft Guidelines conspicuously downplay the AEC test, suggesting it is optional rather than mandatory. For African markets, this is a double-edged sword. In developing markets, entrants are rarely as efficient as the incumbent initially. They face higher costs of capital and lack economies of scale. Protecting only as-efficient rivals might mean protecting no one. Therefore, moving away from a strict AEC test, as the EU is doing, could align well with Africa's goal of nurturing infant industries.
However, without the discipline of the AEC test, authorities risk protecting inefficient competitors. If a dominant firm cuts prices aggressively (but stays above cost), and a local rival complains, a presumption-based approach might punish the dominant firm for alleged predation. The result? Higher prices for low-income consumers, all to protect a firm that may be commercially inefficient or politically connected, or both.
The solution may lie not in abandoning the AEC test entirely, but in adapting it. Some scholars have proposed a "reasonably efficient competitor" (REC) test as a middle ground between the strictures of the AEC standard and the permissiveness of a pure presumption-based approach. Under a REC framework, the benchmark is not a hypothetical rival with identical cost structures to the incumbent, but a competitor that is efficient enough to be commercially viable given the structural realities of the relevant market, including higher capital costs, limited economies of scale, and the disadvantages that new entrants typically face in developing economies. This standard would allow African authorities to intervene where a dominant firm's conduct would exclude all but a mirror image of itself, while avoiding the trap of shielding firms that are simply uncompetitive. The REC test would also provide a more defensible analytical framework than bare presumptions, offering courts a principled basis for reviewing regulatory decisions, a consideration of particular importance in jurisdictions where judicial capacity for complex economic analysis is still developing.
Specific Jurisdictional Clashes
We are already seeing divergences in how African jurisdictions handle these concepts compared to the EU's Draft Guidelines.
In South Africa, the Competition Act provides a layered framework for abuse of dominance. Section 8(1)(a)-(d) lists specific prohibited practices, including excessive pricing, refusal to supply essential facilities, and exclusionary acts, while Section 8(1)(c) contains a broad "catch-all" exclusionary abuse provision requiring proof that the conduct has an anticompetitive effect that outweighs any technological, efficiency, or other pro-competitive gain. Importantly, the 2019 amendments introduced Section 8(4), empowering the Minister to designate specific sectors where the Competition Commission can impose price regulation on dominant firms — a provision deployed in the data services market following the Data Services Market Inquiry. South African courts and the Competition Tribunal have generally required a demonstrable anticompetitive effect, developing their own analytical standards through jurisprudence rather than rigid guidelines. The Harmony Gold/Mittal Steel excessive pricing case established a test explicitly tied to consumer detriment and economic value far more nuanced than a simple presumption of illegality. The Media24 predatory pricing case, in which the Competition Tribunal ultimately dismissed the complaint, illustrated both the analytical rigour required to establish below-cost pricing abuse and the institutional difficulties of pursuing such cases even in Africa's most capacitated competition authority[8]. South Africa's experience suggests that the effects-based approach, while resource-intensive, produces more legally durable outcomes than presumption-based shortcuts.
In Kenya, the 2024/2025 amendments to the Competition Act introduced the concept of abuse of superior bargaining position, particularly in the agricultural and retail sectors. This provision goes beyond the EU's traditional focus on dominance (conventionally assessed at 40%+ market share) to capture firms that wield significant leverage over suppliers or buyers, regardless of whether they meet the threshold for market dominance. While the article's author correctly identifies this as a departure from the EU's competition standard, it is worth noting that the concept is not novel in comparative terms: it has deep roots in German competition law (the concept of überlegene Marktmacht in the GWB, most recently amended in 2021) and Japanese antitrust law (which has regulated abuse of superior bargaining position since 1947 under the Antimonopoly Act)[9]. Kenya's adoption of this standard suggests a deliberate regulatory choice to address power imbalances in supply chains, a concern that resonates across African agricultural and retail markets, through a fairness lens that is complementary to, but distinct from, the efficiency-focused competition standard.
In Nigeria, the Federal Competition and Consumer Protection Act (FCCPA) presents a framework that anticipates the EU's shift toward presumptions, though with important structural differences. Section 72(2) of the FCCPA deems certain conduct by a dominant firm to be abusive, including charging excessive prices to the detriment of consumers, refusing access to essential facilities, and selling goods or services at a price below marginal or average cost [10]. This statutory language creates what are, in effect, built-in presumptions of abuse for specific conduct categories, closer to the EU's new approach than the effects-based tradition the article advocates. However, Section 72(3) provides an efficiency defence modelled closely on Article 101(3) TFEU, requiring that the conduct improves production or distribution, allows consumers a fair share of the benefits, is indispensable, and does not eliminate competition substantially.
What makes Nigeria's position particularly revealing for the present debate is the FCCPC's enforcement trajectory. The Commission's landmark $220 million penalty against Meta in 2024, upheld by the Competition and Consumer Protection Tribunal in April 2025, was grounded in findings of exploitative and discriminatory practices, including abuse of dominant market position through forced privacy policies [11]. Yet this case also exposed a critical weakness — the FCCPC's institutional origins as a consumer protection body mean that its enforcement instincts tend to gravitate toward consumer protection tools (such as the price gouging provisions in Section 127 FCCPA) rather than the more analytically demanding abuse of dominance framework. Furthermore, the FCCPC's 2022 Abuse of Dominance Regulations, while providing some regulatory structure, have yet to be tested through a robust body of case law on exclusionary conduct. The concurrent jurisdiction between the FCCPC and sector-specific regulators, particularly the Nigerian Communications Commission (NCC) in telecoms and the Central Bank of Nigeria (CBN) in financial services, creates additional complexity, as overlapping mandates can produce inconsistent analytical standards[12]. For Nigeria, adopting the EU's new presumption-heavy approach wholesale would risk compounding these institutional vulnerabilities. In a jurisdiction where judicial review of complex economic evidence is still maturing, and where the regulator's capacity for effects analysis is developing, rebuttable presumptions could easily harden into irrebuttable ones, precisely the danger this article warns against.
Should African Regulators Copy-Paste the EU's New Article 102 Guidelines?
The answer is likely no. The foregoing analysis suggests that African regulators should resist the temptation to transplant the EU's Draft Guidelines wholesale.
The EU model is designed for a jurisdiction with vast judicial capacity to hear rebuttals. If a European firm is presumed to have engaged in abusive conduct, it has access to extensive legal and economic expertise to mount a rebuttal before specialised courts. In many African jurisdictions, the judicial capacity to evaluate complex economic rebuttals is still developing. A rebuttable presumption in law often becomes an irrebuttable presumption in practice if the courts defer too easily to the regulator.
Instead, African policymakers should consider a Hybrid Model:
- Adopt object-based prohibitions for naked restraints: There is no economic justification for a dominant firm paying a distributor not to sell a rival's product. African guidelines should treat this as a per se abuse or an object-based violation, similar to the EU's first category under the Draft Guidelines. This saves resources and sends a clear deterrent signal.
- Retain effects analysis for pricing and rebate conduct: For rebates, margin squeeze, and predatory pricing, African authorities should not abandon the effects-based approach. Price competition is the most direct benefit of markets for low-income consumers. Presuming that low prices are abusive (predatory) is dangerous in economies fighting inflation. Here, a modified AEC test — specifically a REC standard adjusted for the structural cost disadvantages that new entrants face in developing markets — is appropriate.
- Explicit Public Interest Defences: The EU Draft Guidelines are silent on public interest because their mandate is pure competition, distinct from industrial policy. African guidelines must explicitly allow dominant firms to justify conduct if it delivers public benefits (e.g., universal service obligations in telecoms, or local procurement mandates). This Rule of Reason approach aligns better with the developmental state model than the EU's formalistic categories.
- Investment in institutional design alongside substantive rules: African policymakers should prioritise the development of specialised competition benches within national courts, the recruitment and training of economists within competition agencies, and the establishment of peer-review mechanisms, whether through the African Competition Forum, COMESA, or the AfCFTA institutions, to ensure consistent analytical standards across jurisdictions.
Conclusion
The publication of the EU's Draft Guidelines on Article 102 is a significant development, but it is not a universal standard. It represents Europe's specific reaction to its own judicial history and its enforcement challenges in digital and industrial markets, compounded by the parallel adoption of the DMA as an ex ante regulatory instrument.
For the emerging African competition regime, the lesson from Brussels is not to adopt more presumptions, but to build institutionally realistic enforcement frameworks.
As the AfCFTA Competition Protocol moves toward ratification and eventual operationalisation, the institutions tasked with its implementation should draw on the EU's two decades of experience with effects-based analysis while critically examining the Commission's recent retreat from that approach. Specifically, the implementing rules under the Protocol should articulate: (i) a clear typology of abuse, distinguishing object-based restrictions from conduct requiring effects analysis; (ii) a contextually appropriate efficiency standard, such as the reasonably efficient competitor test calibrated to developing market conditions; and (iii) explicit public interest defences reflecting the developmental mandates that distinguish African competition regimes from their European counterparts.