Judge’s gavel next to brass scales in a case

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.

Adopted3 September 2026
Legal basisArticle 102 TFEU
Replace2008 Guidance Paper on enforcement priorities
Draft publishedAugust 2024

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

1. Departure from competition on the meritsDoes the conduct fall outside normal competition based on price, quality, choice and innovation?
2. Capability to excludeIs the conduct capable of producing exclusionary effects on competitors, with a causal link between the conduct and those effects?

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

PracticeApproach
Naked restrictionsConduct with no economic purpose other than restricting competition; strongest presumption of harm
Exclusive dealing and exclusivity rebatesRebuttable presumption of abuse
Predatory pricing and margin squeezePrice-cost test
Conditional and multi-product rebatesAs-efficient competitor test
TyingTest from the Microsoft case law
Refusal to supplyStrict Bronner conditions, only for inputs developed solely for the company’s own use
Access restrictions and self-preferencingGeneral 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.
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