Article 102 of the TFEU (formerly Article 82 of the EC Treaty) prohibits abuse by one or more undertakings of a dominant position within a market in the EU or a substantial part of the EU. There have been recent important developments in Article 102 enforcement, in particular, demonstrating the European Commission's (Commission) move towards an approach based more on the effect of market practices rather than their form. This resulted in the Commission issuing Guidance on the Commission's enforcement priorities in applying Article 102 to abusive exclusionary conduct by dominant undertakings (Guidance), published on 3 December 2008.

This article reviews recent developments in the application of Article 102 in the context of the Guidance, and goes on to consider areas not covered by the Guidance. Against this background, the article considers: