The European Commission’s new Guidelines on Article 102 TFEU

1. Summary

On 3 September 2026, the European Commission (“Commission”) published its first comprehensive Guidelines on the application of Article 102 TFEU to exclusionary abuses by dominant undertakings for the first time.

Article 102 TFEU prohibits dominant undertakings from abusing their position – in particular to hinder competitors or exclude them from the market. Such abuse weakens competition, stifles innovation and restricts consumers’ choice. The new Guidelines draw on the case law of the EU Courts and the Commission’s experience and practice. They establish a uniform framework for assessing exclusionary abuses and are intended to provide companies with greater legal certainty when self-assessing their business practices. In addition, the Guidelines are intended to modernise EU competition policy by adapting the application of Article 102 TFEU to modern economic conditions and promoting more consistent enforcement. Although the Guidelines are not binding on national competition authorities and courts, they regularly serve as important interpretative guidance.

The Guidelines address exclusively exclusionary abuses. Nevertheless, the principles contained in them for the assessment of dominance and objective justifications are also relevant to other forms of abusive conduct – e.g. exploitative abuses, where dominant undertakings directly harm consumers through unfair terms or excessive prices.

The Guidelines largely codify the existing case law of the EU Courts, but go beyond it in several respects. The further-developed elements include, in particular, the formulation of the “sliding scale evidentiary framework” as a general principle: the more generally capable conduct is of distorting effective competition, the less case-specific evidence should be required. The Guidelines also introduce the “theory of harm” as a methodological framework. In this context, the economic mechanism through which the conduct may harm consumers should be set out.

The Commission’s new Guidelines provide companies with a comprehensive framework for self-assessment of their business practices. In particular, companies should note:

• Reassess market position: A dominant position may exist even at lower market shares – in particular in the presence of network effects, lock-in effects or data-driven advantages.
• Watch for new risk areas: Exclusive dealing arrangements are now subject to a (rebuttable) presumption of distortion of effective competition. In addition, self-preferencing of own products may be viewed critically by competition authorities in certain situations.
• Review internal documents: Business decisions should always be capable of being justified objectively and as promoting competition.
• Consider EU-wide implications: The Guidelines may also influence the practice of national competition authorities and courts.
• Know and use the expanded defence options: The Guidelines contain comprehensive guidance on objective justification and the efficiency defence for the first time – including the first recognition of sustainability benefits as an efficiency defence.

2. Key guidance at a glance

2.1. Assessment of dominance

Article 102 TFEU requires a dominant position. The term dominant position refers to the economic strength enjoyed by an undertaking which enables it to prevent effective competition from being maintained on the relevant market and to behave to an appreciable extent independently of its competitors, its customers and ultimately consumers. 

Whether it exists generally depends on an overall assessment of the relevant market conditions. Market share is an important factor in this regard. The Guidelines identify, in particular, the following points of guidance:

• A market share of 50% or more is a strong indication of a dominant position.
• With a market share of less than 40%, dominance is “generally unlikely” (“soft safe harbour”).

In markets characterised by frequent and significant investment in research and development (“R&D”), e.g. the level of R&D expenditure or the number of patents may be used as relevant measures for assessing dominance.

Under the new Guidelines, digital factors are of particular importance: network effects, lock-in effects and switching costs, data-driven advantages and “winner-takes-all” dynamics can increase barriers to entry and contribute to a finding of a dominant position – potentially even at lower market shares. For the first time, the Guidelines also contain systematic guidance on the assessment of dominance in aftermarkets – relevant, for example, to spare parts, maintenance or software add-ons.

2.2. General guidance on the assessment of exclusionary abuses

As a general rule, a two-step test applies: first, the conduct must depart from competition on the merits. Secondly, it must be capable of having exclusionary effects. 

2.2.1. Exceptions to the two-step test:

• Specific analytical frameworks for certain categories of conduct: The Guidelines contain separate assessment frameworks for certain types of conduct which replace the general two-step test – e.g. for predatory pricing, margin squeeze, exclusive dealing arrangements, tying and bundling of products and refusal to supply.
• “As-efficient competitor” test (AEC test): Where it is demonstrated that conduct is capable of excluding a hypothetical as-efficient competitor, a separate assessment of departure from competition on the merits is unnecessary. However, the AEC test is not mandatory in all cases – in particular, in relation to non-price conduct and in markets with high barriers to entry and network effects, an abuse may be established even without an AEC test.
• “Naked restrictions”: Where conduct is found to be harmful to competition by its very nature, e.g. because it is not in the undertaking’s economic interest (for example, payments to customers conditional on their not selling a competitor’s products; active dismantling of infrastructure on which a competitor depends), the Commission likewise dispenses with the general two-step test.

2.2.2. Factors of the general two-step test:

Departure from competition on the merits: Competition on the merits means normal, merit-based competition, i.e. a competitive situation in which consumers benefit from lower prices, better quality and greater product choice. In relation to certain types of conduct, however, the Commission assumes that they are contrary to competition on the merits. This includes, for example, the misuse of regulatory procedures or legal proceedings or the submission of misleading information to authorities or courts in order to hinder competitors.

Capability to produce exclusionary effects: The following factors are of particular relevance:

• Market position of the dominant undertaking: The greater the market power, the more likely it is that the conduct can produce exclusionary effects,
• Extent of the conduct: This includes, in particular, coverage, duration, intensity and strategic significance,
• Evidence of an exclusionary strategy: Internal documents, specific threats and other evidence of a plan to eliminate or reduce competition may be relevant.

The intensity with which these factors are examined depends on the category of conduct concerned: in some cases, a (rebuttable) presumption is sufficient, while in others a full effects analysis is required. The more harmful a category of conduct typically is, the lower the evidentiary requirements for the Commission and the more likely it is that the dominant undertaking bears the burden of proof to rebut the presumption. There is still no de-minimis-threshold.

2.3. Guidance on specific types of conduct

The new Guidelines contain separate analytical frameworks or guidance on the application of the general principles to a number of specific types of conduct. The following is an overview of the most important categories:

Predatory pricing: In the Commission’s view, prices below average variable costs (“AVC”) are generally considered predatory prices. For prices between AVC and average total costs (“ATC”), however, this applies only where the prices form part of a plan to eliminate or reduce competition. Above ATC, there is no predatory pricing. To establish abusive conduct, it is sufficient for the Commission to demonstrate that the dominant undertaking engaged in predatory pricing – a full effects analysis is not required.

Exclusive dealing arrangements: Exclusive dealing arrangements may enable a dominant undertaking to restrict customers’ sources of supply and to deny or restrict competitors’ access to the market. Exclusive dealing arrangements therefore have a high potential to produce exclusionary effects and are consequently subject to a (rebuttable) presumption that they distort effective competition. 

Self-preferencing: Unlike the types of conduct mentioned above, self-preferencing is not subject to its own specific analytical framework but is assessed under the general two-step test, with the Commission required to demonstrate a distortion of effective competition. More favourable treatment of an undertaking’s own products by a dominant undertaking is not prohibited as such. In certain circumstances, however, self-preferencing may distort effective competition. The Guidelines identify, in particular, three factors: (i) whether the undertaking leverages an important market for which there are no substitutable alternatives in order to favour its own products on another market, (ii) whether there is unjustified unequal treatment compared with competitors, and (iii) whether the conduct is capable of influencing user behaviour irrespective of the quality of the favoured product.

Tying and bundling: Under the Guidelines, abusive tying or bundling may arise where a dominant undertaking leverages its position in the market for the tying product by preventing customers from purchasing the tying product without the tied product.

3. Objective justification and efficiency defence

Potentially abusive conduct may nevertheless be objectively justified where it is either (a) objectively necessary, e.g. for reasons of health, safety, sustainability or resilience, or (b) produces efficiencies that offset or outweigh the negative effects of the conduct on competition. In each case, the burden of proof lies with the dominant undertaking.

The objective necessity defence is justified provided that the conduct is objectively necessary and proportionate to achieve a legitimate aim. Relevant considerations include legitimate commercial considerations, such as protection against unfair competition or against impairment of the integrity and security of its own services.

The efficiency defence, by contrast, is based on the assertion that the conduct enables the undertaking to compete more effectively in terms of price, quality, innovation or choice and thereby create benefits for consumers. For the first time, sustainability benefits are also explicitly recognised as a form of efficiency defence.