The European Commission adopts its long-awaited guidelines on exclusionary abuses under Article 102 TFEU

On 3 September 2026, the European Commission (the ”Commission”) adopted its first-ever guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings (the ”Guidelines”). Somewhat simplified, exclusionary abuse refers to conduct by a dominant undertaking aimed at excluding competitors from the market. Common forms include predatory pricing, margin squeeze, exclusive dealing, and refusal to supply.

Key takeaways

• The Commission has adopted its first-ever guidelines on Article 102 TFEU, addressing exclusionary abuse by dominant undertakings.
• The Guidelines replace the 2008 Guidance, which will be withdrawn 30 days after the Guidelines are published in the Official Journal of the EU.
• A market share of 50% or more is, save in exceptional circumstances, itself evidence of dominance, while dominance is generally considered unlikely below 40%.
• A two-step test now formally determines whether conduct distorts effective competition: it must (i) depart from competition on the merits and (ii) be capable of having exclusionary effects.
• The Guidelines set out specific analytical frameworks for five types of conduct (predatory pricing, margin squeeze, exclusive dealing, tying and bundling, and refusal to supply); where the conditions of the applicable framework are met, conduct is deemed to distort effective competition without the separate two-step test.
• A narrow category of conduct is by its very nature harmful to competition, for instance because it has no economic rationale for the dominant undertaking, other than restricting competition.
• The efficiency defence has been expanded to recognise sustainability-related efficiencies, alongside quality and innovation gains.
• The Guidelines are intended to consolidate case law on the area into a single, coherent document. However, the EU Courts remain free to depart from the Commission’s reading.

Frequently asked questions

What are the Guidelines and when were they adopted?

On 3 September 2026, the European Commission adopted its first-ever guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings.

What happens to the 2008 Guidance?

The 2008 Guidance, which was framed as a statement of enforcement priorities rather than substantive guidance, will be withdrawn 30 days after the Guidelines are published in the Official Journal of the EU.

How is dominance assessed under the Guidelines, particularly regarding market shares?

A very large market share held over a sustained period is, save in exceptional circumstances, itself evidence of dominance, particularly where the market share is 50% or more. Dominance may also be found below 50%, where factors such as the strength and number of competitors become particularly relevant. Below 40%, the Commission considers dominance generally unlikely, though it may still arise, for example where customers are dependent on the undertaking or competitors face serious capacity constraints.

What conduct types have dedicated analytical frameworks?

The Guidelines identify five conduct types with specific analytical frameworks: predatory pricing, margin squeeze, exclusive dealing, tying and bundling, and refusal to supply. Where the conditions of the applicable framework are met, the conduct is deemed to distort effective competition without the separate two-step test.

Do the Guidelines cover exploitative abuse, such as excessive pricing?

No. The Guidelines are confined to exclusionary abuses. Exploitative conduct, such as excessive or unfair pricing, remains outside their scope, although the Commission has signalled that it will continue to pursue exploitative cases where appropriate and that specific guidance on that type of conduct may follow at a later stage.

The Guidelines are available here.

From Guidance to Guidelines

Until now, Article 102 TFEU has been one of the few major areas in which the Commission had never adopted formal guidelines. The 2008 guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty (now Article 102 TFEU) to abusive exclusionary conduct by dominant undertakings (the ”2008 Guidance”) was framed as a statement of enforcement priorities rather than as substantive guidance on how the prohibition operates. With the new Guidelines coming into force, the 2008 Guidance will be withdrawn 30 days after the publication of the Guidelines in the Official Journal of the EU.

Over the past decades, the EU courts and the Commission have handed down close to 50 judgements and around 40 decisions in the exclusionary-abuse area (for example AKZO v Commission, TeliaSonera, Post Danmark, Intel v Commission and Google Shopping, and much more). Between the Commission’s publication of the first draft and the adoption of the Guidelines, the EU Courts issued judgments in nine cases. The draft was revised to reflect these judgments as well as the comments received from numerous stakeholders during the public consultation. The Guidelines are intended to consolidate case law about exclusionary abuse into a single, coherent document, although, in some instances, it may be questioned whether the Commission’s interpretation fully reflects the case law.

The Guidelines are meant, first, to bring EU competition policy up to date so that Article 102 TFEU can address the realities of modern markets; second, to strengthen predictability, making it easier for dominant firms to self-assess and to compete on the merits; and third, to promote a more uniform application of Article 102 TFEU across the EU, giving national competition authorities and national courts a common reference point. However, it must be stressed that the EU Courts remain free to depart from the Commission’s reading, and national competition authorities and national courts will also play a key role in shaping how Article 102 TFEU is applied in practice.

Key elements of the Guidelines

The structure of the Guidelines

Structurally, the Guidelines are organised around four building blocks. The first covers the assessment of dominance, both single and collective, and explicitly extends to constellations involving digital ecosystems and after-market relationships. The second sets out the general standard for identifying conduct that falls outside competition on the merits and can produce exclusionary effects. The third contains tailored frameworks for specific types of unlawful conduct. The fourth explains the two routes by which a dominant firm can defend its behaviour, namely conduct that is objectively necessary or creates efficiencies which outweigh any negative effects and ultimately benefit consumers.

Assessment of dominance and the role of market shares

Regarding dominance, the Guidelines set out the Commission’s approach to the role of market shares in the assessment. According to the Guidelines, a very large market share held over a sustained period is, save in exceptional circumstances, itself evidence of dominance, particularly where the market share is 50% or more. The Guidelines also recognise that dominance may be found below 50%, where other factors, such as the strength and number of competitors, become particularly relevant. Below 40%, the Commission considers dominance is generally unlikely, though it may still arise, for example where customers are dependent on the undertaking or competitors face serious capacity constraints.

What role do ecosystems and after-markets play in the dominance assessment?

The Guidelines also explicitly recognise ecosystems and after-markets as part of the dominance assessment and set out the factors relevant to assessing dominance in such settings. A digital ecosystem is a platform connecting suppliers, customers and consumers through horizontally or vertically complementary products. After-markets are markets for the supply of products used in connection with what is typically a relatively durable product that has already been acquired. This latter product is referred to as the ’primary product’ (and its market is called the ’primary market’).

Abuse: When does conduct distort effective competition?

Regarding the principles to determine if conduct distorts effective competition, a two-step test is now formalised in the Guidelines. A dominant firm’s conduct will be treated as distorting effective competition where it (i) departs from competition on the merits and (ii) is capable of having exclusionary effects. The more a given conduct is considered generally likely to distort effective competition, the less case-specific evidence is required to prove that this is the case, and the other way around.

In some circumstances, the demonstration of certain factual elements may lead to the application of a presumption that the conduct distorts effective competition. Such presumptions shift the evidentiary burden from the Commission onto the dominant undertaking. The dominant undertaking can rebut the presumption by showing that the conduct does not distort effective competition in light of the factual circumstances of the case.

Specific analytical frameworks for certain conduct

The Guidelines identify five conduct types with specific analytical frameworks: predatory pricing, margin squeeze, exclusive dealing, tying and bundling, and refusal to supply. Where the conditions of the applicable framework are met, the conduct is deemed to distort effective competition without the separate two-step test mentioned above.

As an example, predatory pricing is captured by a dedicated price-cost test: pricing below average variable cost is, in itself, sufficient to establish predatory pricing, while pricing between average variable and average total cost requires additional evidence of a plan to eliminate or reduce competition.

Conduct manifestly outside the scope of competition on the merits

At the other end of the spectrum, the Commission considers that a narrow category of conduct by dominant undertakings is by its very nature harmful to competition, for instance because it has no economic rationale for the dominant undertaking, other than restricting competition. The Commission gives as an example of such conduct the active dismantling by a dominant undertaking of infrastructure on which a competitor relies to compete effectively on the market. According to the Commission, such conduct falls manifestly outside the scope of competition on the merits and is therefore very unlikely to produce consumer benefits.

What constitutes objective justifications?

According to the Commission, an objective necessity defence is generally based on an overriding reason that can justify conduct that distorts effective competition. Such reason may relate to the need to protect the dominant undertaking’s legitimate interests or, in certain circumstances, to the pursuit of a public health, safety or other public interest objective. The burden of proof for an objective necessity or efficiency defence lies with the dominant undertaking.

When may the efficiency defence be applicable?

The efficiency defence has also been refined. Alongside the more familiar categories of quality and innovation gains, the Guidelines accept that efficiencies with a sustainability dimension can, when properly evidenced, form part of the justification. For example, such benefits may arise when the dominant undertaking’s conduct enables the use of less raw materials or less polluting production or distribution technologies, an increase in the recyclability of products, reliance on more resilient infrastructure, a reduction in the risk of supply chain disruptions, the production of new, more sustainable products or a reduction in the time it takes to bring products to the market.

Next steps

The Guidelines are confined to exclusionary abuses. Exploitative conduct, such as excessive or unfair pricing, remains outside their scope, although the Commission has signaled that it will continue to pursue exploitative cases where appropriate and that specific guidance on that type of conduct may follow at a later stage.

While the Guidelines bring welcome clarity to how exclusionary abuse will be assessed by the Commission going forward, the real test lies in how dominant firms translate this framework into practice. We recommend that undertakings that hold, or may hold, a dominant position should therefore revisit their market position and their pricing, distribution, rebate and access arrangements against the new framework.

At Delphi, we have extensive experience assisting companies alleged to hold a dominant market position. Our services include assessing market position, providing strategic advice, and defending clients before the European Commission and the Swedish Competition Authority in cases involving alleged abuse of dominance, as well as representing clients before the Patent and Market Courts. We also represent complainants in such proceedings. Moreover, we assist companies with competition law compliance, guidelines and trainings. Please do not hesitate to contact our team of experts if you would like to discuss how we can assist you.