On 3 September 2026, the European Commission (Commission) adopted Guidelines on the application of Article 102 TFEU to exclusionary conduct by dominant undertakings (the Guidelines), replacing the 2008 Guidance on enforcement priorities.
In this Antitrust Client Briefing, we examine key developments related to the Guidelines and discuss their potential implications for companies.
Driven by its goal at the time to apply an “effects-based approach” to enforcing Article 102 TFEU, the Commission published the Guidance on the Commission’s enforcement priorities in 2008 (the 2008 Guidance). In March 2023, the Commission published a Communication (and Annex) amending its 2008 Guidance. The amendments followed more than 30 judgments by the EU courts on exclusionary abuses and signalled a shift away from the effects-based approach. This transition included greater emphasis on competition from less efficient competitors and a lesser role for economic analysis.Cf. paragraphs 19 and 23–27 of the amended 2008 Guidance.
In August 2024, the Commission published draft Guidelines on the application of Article 102 TFEU to exclusionary conduct (the Draft Guidelines) for public consultation. The Draft Guidelines rolled back further the effects-based analysis, proposing to establish a presumption that conduct falling into certain specified categories can produce exclusionary effects. The Draft Guidelines received heavy criticism.See our Briefing: “A Less Economic Approach? European Commission Consults on Draft Guidelines for Exclusionary Conduct” (3 September 2024).
On 3 September 2026, the Commission adopted the final version of the Guidelines, which now restate its interpretation of the case law while refraining from providing bright-line guidance for compliance. The Commission’s desire to preserve enforcement flexibility diminishes the value of the Guidelines for compliance purposes beyond providing a statement of the Commission’s own interpretation.
The Guidelines’ approach to assessing conduct under Article 102 TFEU includes determining whether:
This briefing focuses primarily on the second and third steps outlining the potential implications for companies.
The Draft Guidelines consistently referred to “conduct liable to be abusive” and asked whether conduct “departs from competition on the merits” and is “capable of having exclusionary effects”.See — notably — footnote 25 of the Draft Guidelines. The Guidelines replace this operative framing with a unified standard: whether conduct “distorts effective competition”. However, the two-pronged test is largely retained. The Guidelines state that, for conduct to distort effective competition, it is necessary to demonstrate that it (i) departs from competition on the merits, and (ii) is capable of producing exclusionary effects (para. 59). Only three specific scenarios are exempt from needing to demonstrate these two steps separately: where the conduct (a) fulfils the established legal test for a specific abuse (e.g., predatory pricing or margin squeeze), (b) is capable of excluding a hypothetical as-efficient competitor, or (c) is by its very nature harmful to competition.Guidelines, paras. 62-65. See also CJEU, judgment of 21 December 2023, European Superleague Company SL, C-333/21, EU:C:2023:1011, para. 129.
The shift to the unified “distorts effective competition” standard aligns the terminology more closely with CJEU language and signals a more integrated approach based on assessing the dominant firm’s conduct in the context in which it operates without bright-line guidance. The Commission has refrained from developing the “competition on the merits” concept, essentially saying that competition on the merits covers a competitive situation in which consumers benefit from lower prices, better quality, and a wider choice of new or improved goods and services. Nor does the Commission develop the element of replicability — i.e., the ability of as-efficient competitors to replicate the dominant firm’s conduct.
The Guidelines introduce the concept of a “theory of harm”, committing the Commission to articulating the economic mechanism through which the conduct is capable of directly or indirectly harming consumers (para. 57). This includes reference to the conduct’s potential impact on competitive market structure, barriers to entry or expansion, prices, quality, innovation, and consumer choice.
“Theory of harm” explanations will be helpful in the context of enforcement action and over time may provide additional guidance through cases. However, as such they do not facilitate companies in self-assessing compliance.
The Draft Guidelines organised the evidentiary burden into three discrete categories: (a) conduct for which capability to produce exclusionary effects must be demonstrated; (b) conduct presumed to lead to exclusionary effects; and (c) naked restrictions. The Guidelines adopt a more nuanced “sliding scale” approach: “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” (para. 58). Presumptions are retained but framed as varying in “strength and scope” depending on the specific analytical framework and evidence.Guidelines, para. 58. See CJEU, judgment of 24 October 2024, Commission v. Intel, C-240/22 P, para. 179; CJEU, judgment of 2 July 2026, Google and Alphabet v. Commission (Google Android), C-738/22 P, paras. 190-199 and 222.
This approach aligns with the CJEU’s language in Commission v. Intel (C-240/22 P, October 2024) and Google Android (C-738/22 P, July 2026), and represents a refinement over the Draft Guidelines’ more rigid tripartite categorisation. The sliding scale provides greater flexibility and recognises that the evidentiary requirements should be proportionate to the nature of the conduct at issue. For companies, this means a better sense of how much evidence the Commission would need to establish a violation. However, the Commission retains significant discretion in determining when conduct is “capable of producing exclusionary effects”, and companies may find it difficult to predict with certainty how this standard will be applied in practice.
The Guidelines introduce a clear tripartite distinction that was not present in the Draft Guidelines:
This tripartite framework provides greater clarity compared to the Draft Guidelines, which stated that a price-cost test is “generally inappropriate” for non-pricing practices, but did not draw the distinction as systematically. The continued erosion of the as-efficient competitor (AEC) test for non-pricing conduct, which can be considered “only in exceptional circumstances”, remains notable. While this may reflect the current state of the CJEU’s case law, the CJEU has been very clear that competition authorities are required to assess the probative value of economic analyses submitted by the undertaking concerned.CJEU, judgment of 19 January 2023, Unilever Italia Mkt Operations, C-680/20, EU:C:2023:33, para. 60. Companies should therefore continue to develop and submit AEC evidence as part of their defence strategy, based on the proposition that conduct that can be replicated by as-efficient competitors is not abusive.
The Guidelines add a dedicated sub-section on causation (Section 3.3.3), elevating what was previously scattered guidance into a consolidated framework. The Guidelines state that exclusionary effects must be attributable to the conduct, though the conduct need not be the sole cause. It is sufficient to establish that the conduct increases the likelihood of exclusionary effects materialising. Importantly, the Commission can rely on a range of evidence “without being required systematically to use any single methodology, in particular a counterfactual analysis”. The Commission also explains that the conduct does not need to be enabled by the dominant position.
The Commission retains maximum flexibility. Given the Commission’s reading of the case law, companies should be prepared to address a range of evidentiary approaches rather than expect the Commission to rely on a traditional counterfactual analysis, long considered an established analytical tool to assess causation.
Section 4 of the Guidelines addresses specific types of conduct. Key features include:
Despite the improvements in other areas, the Guidelines retain the Commission's position that exclusive dealing is presumed to distort effective competition once the factual existence of the exclusivity obligation is established. As noted in our September 2024 Briefing on the Draft Guidelines, there does not appear to be a clear basis in the case law to shift the burden of proof to the dominant firm in this manner. The CJEU in IntelCJEU, judgment of 6 September 2017, Intel v. Commission, C‑413/14 P, EU:C:2017:632, para. 138. and UnileverCJEU, judgment of 19 January 2023, Unilever Italia Mkt Operations, C-680/20, EU:C:2023:33, para. 52. placed the burden on the Commission to prove that exclusive dealing can have exclusionary effects where the dominant firm has advanced evidence to the contrary. While the Guidelines provide guidance on rebuttal, the starting presumption remains a significant concern for dominant companies that use exclusivity arrangements.
At the same time, the reorganisation of specific abuse categories also reflects several notable shifts. The treatment of tying adopts a more nuanced position than the Draft Guidelines’ proposed presumption-based approach.
The self-preferencing framework is substantially expanded, distinguishing offensive and defensive leveraging and introducing the “expectation of neutrality or openness” concept — though the precise contours of this abuse remain open-ended. Companies operating digital platforms should carefully monitor enforcement developments in this area.
The Draft Guidelines’ “naked restrictions” sub-category has been elevated to a standalone Section 4.10, renamed “Conduct that is by its very nature harmful to competition”. This includes conduct of no economic interest to the dominant undertaking other than restricting competition. The Guidelines add a new example: a conflict of interest between regulatory and commercial functions, reflecting the European Superleague judgment.Cf. CJEU, judgment of 21 December 2023, European Superleague Company SL, C-333/21, EU:C:2023:1011, paras. 131, 133, 147 et seq. and 185. The Commission acknowledges that the EU courts have not yet ruled on whether a dominant undertaking can challenge a finding that conduct is by its very nature harmful to competition by proving that the conduct is not capable of producing exclusionary effects in the specific circumstances of the case.
Companies should note that the threshold for challenging a finding under this category is extremely high — the Commission considers that such challenges may “only very exceptionally be successful”. This underscores the importance of ensuring that business practices have a sound economic rationale.
Section 2 of the Guidelines contains several important additions to the dominance assessment:
The 40% soft safe harbour offers a useful screening tool. For technology companies and their advisors, the expanded framework addressing digital ecosystems, AI, and data-driven advantages provides much-needed guidance. For in-house counsel and compliance teams, the dominance assessment framework now set out in a single, authoritative document can serve as a baseline for compliance programmes and risk assessments.
Section 5 of the Guidelines has been substantially expanded compared to both the 2008 Guidance and the Draft Guidelines. The efficiency defence now contains separate sub-sections on: (5.3.2) verifiable efficiencies, (5.3.3) fair share for consumers, (5.3.4) indispensability, and (5.3.5) no elimination of effective competition.
Key features of the expanded efficiency defence include:
The burden of proof remains on the dominant company and requires “a cogent and consistent body of evidence”. Consistent with EU case law, the Commission assumes that the dominant undertaking is typically better placed to disclose or demonstrate the relevance of such evidence.
The substantially more detailed treatment of objective justifications and efficiencies is a practical improvement. The efficiency section of the Draft Guidelines was criticised for being too concise to be operationally useful. The express recognition of sustainability benefits gives companies engaging in green initiatives a firmer basis for their arguments. The guidance on out-of-market efficiencies is valuable for multi-product companies generating synergies across their portfolio. In addition, the treatment of sunk investments and hold-up problems provides a framework for arguing that exclusionary arrangements are necessary to protect investments and incentivise innovation — although the burden of proof and the standard of “convincing arguments and evidence” remain demanding.
The Guidelines represent a significant development in the enforcement of Article 102 TFEU — the first comprehensive guidelines on exclusionary conduct by dominant undertakings. They are the product of a multi-year process that began with the March 2023 Communication and the August 2024 Draft Guidelines and reflect both the extensive public consultation and the significant developments in the CJEU’s case law during 2024–2026. The final text is, in several respects, an improvement over the Draft Guidelines: the sliding scale evidentiary framework is more nuanced; the theory of harm commitment enhances transparency in enforcement cases; the expanded efficiency defence provides a roadmap for dominant companies; and the treatment of modern market realities (digital ecosystems, AI, sustainability) is a helpful reflection of the transformation of the economy. At the same time, the Guidelines are designed to give the Commission flexibility to intervene in any case where it sees concerns and refrain from providing bright lines for self-assessment. Other concerns remain — particularly regarding the presumption for exclusive dealing, the continued marginalisation of the AEC test and principle for non-pricing conduct, and the scope of the self-preferencing framework. Companies in dominant positions should use the Guidelines as statement of the Commission’s interpretation of the past EU courts case law, while remaining attentive to enforcement developments and prepared to develop robust economic evidence in defence of their commercial practices.
Finally, the Guidelines do not address the interplay between Article 102 TFEU and sector-specific regulation such as the Digital Markets Act (DMA) — this remains an open question for companies designated as DMA “gatekeepers”.