European Commission – Adoption Of The Guidelines On Exclusionary Abuses Under Article 102 TFEU

The European Commission has adopted Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings. 

The assessment under the Guidelines comprises three stages: determining whether the undertaking holds a single or collective dominant position in the relevant market, assessing whether its conduct distorts effective competition and, where applicable, examining any objective justification.

Key elements of the Guidelines include:

• A market share of 50% or more, where maintained over time, may in itself constitute evidence of dominance, save in exceptional circumstances. Although the Commission considers dominance generally unlikely below 40%, it may still be established where, for example, customers are dependent on the undertaking or competitors face significant capacity constraints.
• Conduct generally distorts effective competition where it departs from competition on the merits and is capable of producing exclusionary effects. Proof of actual exclusionary effects or direct consumer harm is not required, although the alleged effects must be more than hypothetical and supported by specific and concrete evidence.
• Separate analytical frameworks are provided for predatory pricing, margin squeeze, rebates not conditional on exclusivity, exclusive dealing, tying and bundling, access restrictions, refusal to supply and more favourable treatment of the dominant undertaking’s own products, commonly referred to as self-preferencing.
• The equally efficient competitor test is not required for every form of exclusionary conduct. Price-cost tests generally remain central to the assessment of pricing conduct, while non-pricing practices may be examined by reference to qualitative evidence, innovation, access to data, network effects and dynamic market conditions.
• Exclusive dealing is subject to a rebuttable presumption that it distorts effective competition. Conduct that has no reasonable economic rationale other than restricting competition and is by its very nature harmful to competition will be deemed to distort effective competition.

Dominant undertakings may seek to justify their conduct by demonstrating that it is objectively necessary or generates efficiencies that counterbalance its restrictive effects. An efficiency defence requires the cumulative demonstration of verifiable efficiencies, benefits for consumers, indispensability of the conduct and the absence of any elimination of effective competition.

The Guidelines concern exclusionary abuses only. With the adoption of the Guidelines, the Commission has withdrawn its 2008 Guidance on enforcement priorities, as amended in 2023.

(European Commission – 03.09.2026)