European Commission Publishes Landmark Guidelines on Exclusionary Abuses by Dominant Companies

On 3 September 2026, the European Commission adopted new Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings. The Guidelines follow a public consultation on a draft published in August 2024 and reflect substantial stakeholder feedback. They replace the Commission's 2008 Guidance on enforcement priorities (which ceases to apply 30 days after publication of the new guidelines in the Official Journal) and represent the most significant reset of the Commission's Article 102 enforcement framework in nearly two decades. The Commission's stated aim is to set out principles and operational guidance, enhance legal certainty, and help companies self-assess their exclusionary-abuse risk.

In this alert, we give you an overview of the Guidelines’ key elements and provide a list of urgent action points for in-house counsel at companies with a significant market position in the EU. In-house counsel should consider these Guidelines as a compliance trigger.

Key Points 

How is Dominance Assessed? 

A sustained market share of approximately 50% or more is, save in exceptional circumstances, in itself evidence of dominance. In a notable addition to the 2024 draft, the final Guidelines reconfirm a soft safe harbor: dominance is generally unlikely if the market share is below 40%, though it remains a possibility, depending on other factors.

Beyond market share, the Guidelines place particular emphasis on data-driven advantages, network effects, "winner-takes-all" dynamics, lock-in and switching costs, and digital ecosystem features as factors that can raise entry barriers and entrench dominance. Companies in digital and platform markets may face a dominance finding at lower share thresholds than in traditional markets. For after-markets (accessories, maintenance, software), the Commission will examine whether competition in the primary market disciplines after-market conduct.

Is it Abusive Exclusionary Conduct?  

The Commission bases its assessment on a "theory of harm" — that is, how conduct can harm consumers via market structure — and relies on a two-pronged analytical framework: (1) is there a departure from competition on the merits and (2) is the conduct capable of having exclusionary effects.

Importantly, the Guidelines confirm there is no legal requirement to demonstrate direct harm to consumers to establish a distortion of effective competition. Exclusionary effects need only be more concrete than purely hypothetical. Actual effects need not be proven, and there is no de minimis threshold under Article 102 TFEU.

On the "equally efficient competitor" (AEC) test: For pricing conduct (predatory pricing, margin squeeze, conditional rebates), the assessment typically centers on whether the conduct can exclude a hypothetical equally efficient competitor, usually via price-cost tests using the dominant undertaking's own contemporaneous data. For non-pricing conduct and digital ecosystems, AEC quantification may not be meaningful, and qualitative evidence and market developments carry more weight.

Conduct-Specific Frameworks 

The Guidelines set out specific analytical frameworks for the following types of conduct.  

Conduct	Key Risk Indicators
Predatory pricing	Below-cost pricing; AVC/ATC price-cost tests; no recoupment requirement
Margin squeeze	Difference between downstream and upstream prices does not allow an equally efficient downstream competitor to operate profitably on a lasting basis
Conditional rebates	Retroactivity, individualization, size of the rebate, "unavoidable trading partner" status, length of reference period
Exclusive dealing	Subject to a presumption of harm once exclusivity is established; rebuttable, but burden shifts to the dominant firm
Tying & bundling	Separate products + dominance in tying market + coercion + capability of exclusionary effects
Access restrictions / refusal to supply	Stricter "indispensability" test for refusal to supply inputs developed solely for own use; access restrictions assessed more broadly
Self-preferencing	No need to meet the indispensability threshold; focus on differential treatment and influence over user behavior
"By its very nature harmful" conduct	Certain "naked" restrictions (e.g., conditional payments not to stock a rival; discretionary rulemaking by a conflicted dominant firm) are deemed abusive without further effects analysis

Objective Justifications 

Conduct that distorts competition may still be justified if (1) there is objective necessity or (2) there are efficiencies that counterbalance or outweigh the harm. The burden of proof lies with the dominant undertaking. Justifications require convincing evidence; vague or theoretical claims, or claims based exclusively on commercial interest, are insufficient. Compared to the 2024 draft, the final Guidelines significantly expand the guidance on objective justifications, providing more detailed direction on the types of evidence the Commission will assess and the evidentiary standard such evidence must meet, including by recognizing sustainability benefits as a distinct form of efficiency defense.

Efficiencies must be objective, concrete, and verifiable, supported where possible by contemporaneous internal documents and financial materials. Specifically, four cumulative conditions must be met: (a) efficiencies must be achieved, (b) they must counteract negative effects on competition and consumers, (c) the conduct must be necessary, and (d) effective competition must not be eliminated.

Overlap with the Digital Markets Act and Other Regimes 

The Guidelines are without prejudice to other EU and national regulatory regimes. Article 102 TFEU can apply even where conduct is subject to sector-specific regulation, and conduct may be sanctioned under Article 102 regardless of whether it complies with or falls outside other legal frameworks.

For example, compliance with the Digital Markets Act or sector-specific rules will not protect an undertaking from Article 102 scrutiny. Therefore, a parallel Article 102 assessment for all commercially significant practices involving dominant market positions is required.

Key Action Points for In-House Counsel 

1. Update your compliance frameworks. Internal compliance programs, dominance assessments, and commercial practice reviews should be refreshed taking the new Guidelines into account. Dominance assessments should not just include market share data but also an analysis of data access, user lock-in, ecosystem linkages, and switching costs.

2. The evidentiary route depends on the type of conduct — know which applies to you. You should map your current commercial practices. Pricing practices (predatory pricing, margin squeeze, rebates) are typically assessed via AEC/price-cost tests using internal data. Ensure finance teams can generate AEC/price-cost-test-ready data using internal accounting records. Non-pricing practices and digital market conduct are assessed through broader qualitative theories of harm. Build a documented qualitative effects narrative alongside any quantitative analysis. 

3. Presumptions and burden-shifting are real risks — build rebuttal evidence early. For exclusive dealing, a presumption of harm applies once exclusivity is established, shifting the burden to the dominant firm. For objective justifications, the burden of proof lies entirely with the dominant undertaking and requires convincing, contemporaneous evidence. Build a contemporaneous "objective justification pack" covering: technical integrity or security rationale; consumer benefit analysis; less-restrictive-alternatives assessment; and evidence of consumer pass-on where relevant. You should build your file now, not during an investigation.