Our Competition Law: Special Edition Briefing analyzes the Guidelines on exclusionary abuses of dominance under Article 102 TFEU adopted by the European Commission.
A. Overview & Guidelines
B. Key Takeaways for Businesses
C. Conclusion
On 3 September 2026, the European Commission adopted its long-awaited Guidelines on exclusionary abuses of dominance under Article 102 TFEU (the Guidelines). This marks the end of a three-year process that began with the European Commission’s Call for Evidence in March 2023, followed by the publication of the Draft Guidelines for public consultation in August 2024 and a stakeholder workshop in February 2025.
The Guidelines aim to modernize EU competition policy, enhance legal certainty and promote greater consistency in the enforcement of Article 102 TFEU. They are intended to serve as a tool for companies to self-assess their business practices and embed compliance directly into their growth strategies.
They were published in the Official Journal on 9 September 2026, and will apply 30 days after their publication, at which point the European Commission's 2008 Guidance on enforcement priorities with regard to exclusionary abuses will be withdrawn.
The Guidelines focus on four core pillars:
1. Dominance: general principles applicable to the assessment of single and collective dominance in the primary markets and their aftermarkets.
2. General principles: determination of whether conduct by a dominant undertaking departs from competition on the merits and can produce exclusionary effects. Conduct that departs from competition on the merits includes the provision of misleading information to authorities, the misuse of regulatory procedures to prevent market entry or the violation of rules in other areas of law, as, for instance, data protection or sustainability, that adversely affect a competition parameter such as price, choice, quality or innovation. Conduct that produces exclusionary effects ranges from total exclusion of rivals to conduct that, more generally, makes it more difficult for competitors to enter or remain in the market.
3. Specific categories of abuses: guidance on specific types of conduct, distinguishing between conduct for which the EU Courts have developed a specific analytical framework (such as predatory pricing, margin squeeze, exclusive dealing, tying and bundling and refusal to supply), and conduct for which the EU Courts have provided guidance on the application of the general principles (such as access restrictions, rebates that are not conditional on exclusivity and self-preferencing). The Guidelines also provide guidance on conduct that is ‘by its very nature’ harmful to competition (for example, a dominant firm paying customers not to sell the products of a specific rival, forcing distributors to swap a competing product with the dominant firm’s product, or actively dismantling an infrastructure that is essential for competitors to operate, or a body with a regulatory and a commercial function setting rules of procedure that deny market access to competitors). Conduct that is ‘by its very nature’ harmful to competition serves no economic interest for the dominant undertaking other than restricting competition. As such, it carries a strong presumption of distortion and an attempt to justify it is unlikely to succeed.
4. Objective justifications: guidance on the general principles applicable to the assessment of objective justifications that may be relied upon by dominant undertakings (ie, where specific conduct is objectively necessary or generates efficiencies that benefit consumers despite any negative effects).
While the Guidelines largely build on existing EU case law and European Commission practice, they contain some particularly relevant points for businesses and their commercial practices. Specifically:
1. A three-step assessment: Evaluating a potential breach of Article 102 TFEU requires a three-stage analysis:
a. identify dominance: does the company hold a dominant position in the market?
b. detect distortion: does the conduct distort effective market competition?
c. check exceptions: can the company prove that the conduct was objectively justified?
2. Consumer welfare goes beyond price: The Guidelines make it clear that consumer welfare is not limited to price, but also includes factors such as choice, quality and innovation. They also clarify that Article 102 TFEU can apply where a practice may harm consumers (either directly or indirectly), without requiring proof of direct consumer harm.
3. The 40% benchmark: The Guidelines introduce a 40% market share benchmark below which dominance is generally unlikely (soft safe harbor threshold); a market share of 50% or more indicates dominance.
4. Modernization of the barriers to entry approach: Apart from market share, barriers to market entry or expansion are a key factor to determine dominance. Such barriers may stem from regulation or authorization requirements, IP rights or advantages such as established distribution or sales channels, vertical integration, access to critical raw materials, brand image, as well as talent recruitment and retention and capital strength and the ability to acquire competitors and innovators. The inclusion of talent recruitment as a market barrier indicator reflects current economic reality especially in the AI and high-tech sectors, where access to specialized human talent is essential to compete effectively on the market.
5. Higher risk for certain practices: For certain types of conduct, once specific factual elements are established, the European Commission may rely on presumptions rather than carry out a full effects analysis. This would include predatory pricing and margin squeeze (for margin squeeze, absent evidence to the contrary, it will be considered to distort competition). Businesses should therefore pay particular attention to these practices when assessing their commercial conduct.
6. The AEC test as an effects-based assessment mechanism: For pricing abuses (predatory pricing, margin squeeze and rebates that are not conditional on exclusivity), the as-efficient competitor (AEC) test is applied to assess the exclusionary effects of the conduct of the dominant firm, in which case it is not necessary to prove separately that the conduct departs from competition on the merits. For non-pricing conduct, the AEC test is not always relevant, and the exclusionary effects may also focus on non-price parameters, such as quality, innovation and choice. For digital markets and ecosystems, a forward-looking approach is appropriate, to take account of restrictions on rivals’ possibility to enjoy demand-related advantages, such as network and learning effects, and exert a stronger competitive constraint in the future.
7. Business justifications matter: The Guidelines provide more detailed guidance on objective justifications and efficiencies, specifically what evidence dominant firms can rely upon to show objective necessity and cost and quality efficiency of their conduct that benefits consumers. Businesses should therefore be prepared to support their commercial practices with clear and credible evidence where such justifications may be relevant.
The Guidelines consolidate case law and provide greater clarity on how the European Commission will assess exclusionary conduct under Article 102 TFEU.
The same approach is expected to be followed by national regulators when dealing with abuse of dominance infringements.
While the Guidelines do not remove all uncertainty, as the application of Article 102 TFEU will continue to develop through EU case law, they nevertheless constitute a useful tool for businesses when appraising their commercial practices, as they provide a more explicit and transparent framework for assessing dominant market conduct.
Accordingly, now more than before, companies must transition from reactive crisis management to proactive antitrust compliance. They must gauge their market leverage, rigorously evaluate antitrust risks and document their tactical decisions during the formulation of their business strategy, instead of managing compliance as a crisis-response exercise.
