On 3 September 2026, the European Commission adopted its first Guidelines on how Article 102 of the Treaty on the Functioning of the European Union applies to exclusionary abuses by dominant companies. They end a three-year review with extensive stakeholder consultation and give businesses, national authorities and courts a common reference point.
What counts as dominance?
The Guidelines confirm long-standing case law: a market share of 50% or more is, save in exceptional circumstances, evidence of dominance. Dominance is generally unlikely below 40%, although this is not an absolute safe harbour. The 40% reference had been dropped in the 2024 draft and was restored after criticism from stakeholders.
A two-part test for abuse
The Guidelines use a sliding scale: the more likely a practice is to harm competition, the less case-specific evidence the Commission needs.
How specific practices are assessed
| Practice | Approach |
|---|---|
| Naked restrictions | Conduct with no economic purpose other than restricting competition; strongest presumption of harm |
| Exclusive dealing and exclusivity rebates | Rebuttable presumption of abuse |
| Predatory pricing and margin squeeze | Price-cost test |
| Conditional and multi-product rebates | As-efficient competitor test |
| Tying | Test from the Microsoft case law |
| Refusal to supply | Strict Bronner conditions, only for inputs developed solely for the company’s own use |
| Access restrictions and self-preferencing | General two-part test; the input need not be indispensable |
The as-efficient competitor test
The as-efficient competitor test remains the main tool for pricing practices, but is generally not required for non-pricing conduct. If a dominant company submits its own analysis, the Commission must assess it. The Guidelines note that the test is usually less relevant in digital markets with high entry barriers and strong network effects.
Justifications and efficiencies
A dominant company can defend its conduct in two ways, but bears the burden of proof for both:
- Objective necessity: the conduct is necessary and proportionate to a legitimate aim, such as safety, technical reasons, regulatory compliance or EU resilience.
- Efficiencies: verifiable efficiencies outweigh the harm, the conduct is indispensable and does not eliminate effective competition. Sustainability benefits can now count as qualitative efficiencies.
What it means for businesses
The Guidelines do not create new law, but they show how the Commission will enforce Article 102 and are expected to guide national competition authorities and courts. Companies with strong market positions should review:
- exclusivity clauses and rebate schemes in distribution and supply agreements;
- pricing strategies close to cost, and wholesale and retail price relationships;
- access conditions for platforms, data and infrastructure, including any self-preferencing;
- documentation of efficiencies and objective justifications for their commercial practices.
We review contracts and business models against EU law, including joint ventures and cooperation agreements.
Joint ventures and cooperation