Summary
Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) seeks to prevent competition from being distorted by companies that have acquired a dominant position on a given market, to the detriment of public interest, other market players and consumers. The competitive harm that may result from abusive conduct can take various forms, such as higher prices, or a limitation of consumer choice.
On 3 September 2026, the European Commission (“EC”) adopted new guidelines setting out the principles and guidance it will use to assess whether conduct by dominant undertakings constitutes an exclusionary abuse of dominance under Article 102 (the “Guidelines”) following an extensive consultation process launched in 2023 and the draft guidelines published on 1 August 2024 (the “Draft Guidelines”).
The Guidelines are intended to help companies self-assess their conduct in light of EU competition policy and root the assessment of dominance in the EC’s longstanding practice and the case law of the EU courts. Teresa Ribera, the Executive Vice-President of the EC for a Clean, Just and Competitive Transition, stated that enforcement will be “relevant and sharp” and apply equally to all companies, regardless of origin. The Guidelines are intended to enhance legal certainty and facilitate business compliance and effective competition, as well as increase consistency in the enforcement of Article 102 TFEU across National Competition Authorities (“NCAs”) and national courts. However, they are not binding on the NCAs and national courts (1). The Guidelines reflect current EU case law and the EC’s interpretation of issues not yet addressed or not fully settled by the courts. They are without prejudice to future rulings of the EU courts and will evolve in light of case law, economic developments, and market dynamics.
The Draft Guidelines elicited strong responses and were prepared as a lowering of the evidential threshold for abuse, particularly in their attempt to set a taxonomy for presumptively abusive conduct. You can view our previous thoughts on the Draft Guidelines here. The final version is more rooted in the case law of the EU courts, recognising there is a spectrum and that “the more a given conduct is considered generally likely to distort effective competition the less case specific evidence is required to provide that this is the case, and the other way round“ (2). It also places less emphasis on a single overarching framework, rather codifying a range of different frameworks drawn from the case law for different contexts. Nevertheless, the overall direction remained unchanged from the Draft Guidelines.
Dominance: the EC has confirmed that it is unlikely to consider companies holding market shares of under 40% to be dominant, subject to exceptions, such as where “customers are generally dependent” on the company concerned. This was originally set out in the EC’s 2008 guidance on former Article 82 EC Treaty (now Article 102 TFEU) enforcement priorities but was omitted in the Draft Guidelines. Its return to the final version is a welcome one, following the uncertainty of the de minimis soft ‘safe harbour’ included in the Draft Guidelines.
Foreclosure and presumptive conduct: whilst the Draft Guidelines suggested various different types of conduct could give rise to a presumption of a distortion of effective competition (including, if certain conditions are met, loyalty rebates, predatory pricing, certain margin squeezes, some forms of tying and exclusive supply or purchasing agreements), the Guidelines confirm that the only type of conduct that explicitly creates this presumption is exclusive dealing, though certain presumptions (generally drawn from case law) flow through into the analytical frameworks set out for specific abuses (3). This is a welcome amendment of the Draft Guidelines, as presumptions shift the burden to the dominant company to rebut the allegation of abuse of dominance, by submitting evidence that the specific conduct was not capable of having exclusionary effects. Consequently, foreclosure is a central concept in the Guidelines, and much of the framework revolves around whether conduct is capable of producing exclusionary effects in the relevant market.
Defences: Efficiencies are treated more clearly as a separate justification, alongside the retained objective necessity defence, that the dominant undertaking must establish for its conduct to fall outside Article 102, after it has been shown to have exclusionary effects. The Guidelines recognise the importance of innovation efficiencies and explicitly discuss efficiencies in a more modern context, particularly in technology or other innovation-driven markets.
(1) Paragraph 8 of the Guidelines.
(2) Paragraph 58 of the Guidelines. The English Court of Appeal endorsed a similar sliding scale idea in the context of the assessment of Chapter 1 object infringements in the recent HOKA judgment – see Deckers UK Ltd v Up& Running (UK) Ltd [2026] EWCA Civ 553. We previously shared insights on this judgment which you can view here.
(3) For example, in relation to margin squeeze, the Guidelines state that “it is probable that such conduct has exclusionary effects”.
Assessing dominance
Market shares remain an important factor when assessing whether an undertaking has a single dominant position on a given market. Save in exceptional circumstances, a market share of 50% or more over a sustained period of time is evidence of a dominant position. Whilst the Draft Guidelines appeared to move away from the soft ‘safe harbour’, the Guidelines confirm the EC’s view that dominance is generally unlikely if the undertaking holds a market share below 40%. Notably, the Guidelines include a clarification to the Market Definition Notice that the approach to market definition may also need to be adapted depending on the specific competitive concerns under assessment. This may suggest a degree of EC flexibility in future enforcement practice in this regard.
When assessing dominance, alongside other factors, the EC will consider the existence of barriers to entry or expansion that prevent potential competitors from gaining access to the market or hinder the expansion of actual competitors. The EC specifically references “data-driven advantages” that may create barriers to entry and expansion, as well as high sunk costs, lock-in effects and other customer switching costs.
The Guidelines introduce a new section on dominance in aftermarkets. Businesses with strong positions in spare parts, maintenance, servicing, or other complementary products may face closer scrutiny even where the primary market remains competitive. This is particularly relevant where aftermarket products are brand-specific and not interoperable with competing systems. Companies should therefore assess potential market power in aftermarkets separately from the primary market. However, this does not necessarily mean that the producer of the primary product is dominant in the after-market.
The Guidelines also explain the concept of collective dominance, which it trails as being potentially relevant where algorithms might facilitate tacit coordination. The EC will also consider whether two or more legally independent undertakings act together and are able to behave independently of competitors, and ultimately of consumers. To establish collective dominance, the EC will examine economic links or factors giving rise to a connection between the undertakings concerned that enable them to act together and adopt a common policy independently of competitors, customers and consumers.
Presumptions and specific abuses
Foreclosure is a central concept in the Guidelines, and the EC adopts language developed in recent case law, focusing on whether conduct is capable of impeding competition and producing exclusionary effects. The Guidelines treat foreclosure as conduct that may make it harder for competitors to access customers, compete for sales, obtain inputs, data, infrastructure or interoperability, enter or expand in the market; or exert an effective competitive constraint on the dominant firm.
The Draft Guidelines attracted substantial criticism for introducing presumptions that certain conduct had exclusionary effects, shifting the burden onto dominant firms to prove otherwise. While the Guidelines do identify categories of conduct that are particularly likely to raise concerns, there is greater emphasis on EU case law and demonstrating that the conduct departs from competition on the merits and can cause exclusionary effects. However, the Guidelines do emphasise that there is no requirement to show actual exclusion, or de minimis impact to establish this.
The EC has provided guidance on types of conduct for which the EU courts have developed a specific framework to establish whether the conduct distorts effective competition (predatory pricing, margin squeeze, exclusive dealing, tying and bundling, refusal to supply), or how to apply general principles to other specific scenarios (including access restrictions, rebates that are not conditional on exclusivity, and self-preferencing). The EC’s focus on these types of non-price conduct reflects its increasing focus on large digital platforms and ecosystem theories of harm, but in principle, the frameworks can be applied more generally.
Access restrictions are recognised as a distinct category of conduct in the Guidelines offering more guidance on how the EC will analyse restrictions on access to ecosystems, interfaces, data and platforms, with reference to the general principles laid out in the Guidelines. The EC has sought to anchor the Guidelines in existing EU case law and past decisional practice, codifying the principles emerging from cases involving digital platforms, telecoms and network industries.
The Guidelines also discuss the issue of one-off access obligations, building on case law beyond the Bronner conditions (4). The EC recognises that not every access case is a refusal-to-supply case and distinguishes between a genuine refusal to grant access to an asset, interface, data set, etc.; and conduct that restricts, degrades, withdraws, changes or discriminates in access conditions. The latter may be analysed as an access restriction where a dominant undertaking has supplied access to others, established a system for access, created an interface through which access is available, or otherwise held itself out as providing access. As a result, denying a competitor access on a one-off basis will not automatically benefit from the strict Bronner conditions, if the dominant undertaking generally provides such access or has already opened the relevant system to third parties.
An example of where an access restriction may be considered abusive includes where the dominant undertaking applies unfair or unreasonable conditions in a way capable of degrading, delaying or otherwise hindering access to an input, e.g. where it fails to establish fair and transparent terms and conditions for access, including pricing arrangements.
So far as self-preferencing is concerned (i.e. an undertaking treating its own products more favourably than those of others) the Guidelines helpfully confirm that whilst such conduct may distort effective competition, there is no general rule that it is problematic, even for dominant undertakings.
As foreshadowed in the Draft Guidelines, the EC has confirmed that the As Efficient Competitor (“AEC”) test will no longer be considered the primary analytical tool for many exclusionary practices. Whilst the AEC test will likely remain useful in some pricing cases, even if a dominant firm proves its conduct does not lead to the exclusion of a hypothetical competitor, its conduct may still be anticompetitive.
The EC has also clarified the evidence a dominant undertaking may submit to establish either that its conduct did not depart from competition on the merits, and/or show that there are benefits resulting from its conduct, that outweigh any distortion of effective competition (see section below).
(4) These were developed in the EU judgment in Case C-7/97, Oscar Bronner v Mediaprint [1998] ECR I-7791.
Objective justifications
The Guidelines confirm that conduct may escape the application of Article 102 TFEU to the extent it can be objectively justified by the dominant undertaking, either because it is objectively necessary (the ”objective necessity defence”), or because it produces efficiencies that counterbalance, or even outweigh the negative effect of the conduct on competition (the “efficiency defence”).
Considering objective necessity, the EC has not materially widened or amended the defence following consultation, and the Guidelines remain consistent with the EU courts’ traditional approach that objective necessity is exceptional and must be demonstrated by the dominant undertaking. Regarding the efficiency defence, while the focus remains on whether efficiencies ultimately benefit customers, the Guidelines place greater emphasis on innovation-driven markets and digital ecosystems. A dominant undertaking may invoke all objective economic efficiencies, including short and long-term cost efficiencies and efficiencies of a qualitative nature.
The EC has also explicitly referenced sustainability efficiencies, such as where the dominant undertaking’s conduct enables the use of less raw materials, or less-polluting production processes, or an increase in recyclability of products, etc. Sustainability benefits stemming from conduct may also translate into consumer benefits in the form of cost savings, e.g. where the conduct enables more sustainable products to be produced or distributed at lower costs, and consumers benefit from both lower prices and the availability of cheaper sustainable products.
To establish an efficiency defence, the dominant undertaking must substantiate four cumulative conditions, demonstrating: (i) that its conduct allows efficiencies to be achieved, (ii) that those efficiencies counteract any negative effects on competition, (iii) that the conduct is necessary for the achievement of the efficiencies, and (iv) that the conduct does not eliminate effective competition.
The efficiency defence will be assessed on a ‘sliding scale’, whereby the greater the potential for the conduct to harm competition, the less likely the four conditions are fulfilled. Therefore, conduct that is “by its very nature harmful to competition” is very unlikely to fulfil the four conditions.
