EU Commission’s final Article 102 Guidelines on unilateral conduct: key changes and implications for business

On 3 September 2026 the EU Commission published its long-awaited Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings (Guidelines), replacing the 2009 Guidance on enforcement priorities in applying Article 102 TFEU to abusive exclusionary conduct by dominant companies. The aim of the Guidelines is to enhance legal certainty, facilitate self-assessment and compliance for businesses and increase transparency and consistency of the application of Article 102 TFEU, including at Member State level.

The final version of the Guidelines follows a lengthy consultation period with stakeholders on the draft guidelines, which has resulted in material changes reflected in the final version. The soft safe harbour below 40% market share has been reinstated, fewer types of conduct are now subject to the presumption that they will create exclusionary effects and there is more guidance on efficiencies claims and objective justification and the type of evidence the Commission will accept.

The Guidelines also address in more detail the application of Article 102 TFEU to digital and dynamic markets, including new categories of abuse arising from some of the tech cases, such as self-preferencing and access restrictions, reflecting the CJEU’s recent case law on exclusionary conduct in digital markets. This sends a clear signal to digital platforms that the application of the Digital Markets Act will not preclude enforcement under Article 102 TFEU.

Although they state that the principles applicable to the assessment of dominance and the assessment of objective justification are also relevant for the assessment of exploitative conduct, the Guidelines remain limited to exclusionary conduct only. The absence of any material guidance on exploitative abuses is unfortunate, given that a significant number of landmark decisions in recent years have targeted exploitative conduct, including unfair trading conditions and excessive pricing. But no similar guidelines on exploitative abuses have been announced so far. 

Assessment of dominance

While the 2009 Guidance only referred to “market power”, the Guidelines introduce a new distinction between dominance and market power. Whereas companies are either dominant or not dominant in a particular market, market power exists on a sliding scale, and dominant companies may have varying degrees of market power. In practice, the precise degree of a company's market power can be taken into account when assessing whether the company's conduct is capable of producing exclusionary effects on competition, thereby lowering the burden of proof for companies found to be “ultra-dominant”.

Single dominance

Market share remains an important factor in assessing dominance. After much back and forth during the consultation process, a “soft safe harbour” was retained, with dominance generally unlikely below 40%. However, the Guidelines place additional emphasis on instances where a company may be dominant with a market share below 40%, including when customers are dependent on the undertaking concerned (akin to the concept of “abuse of dependence” that exists under French and German law). 

In addition, the Guidelines include further guidance around barriers to entry or expansion, which can include data-driven advantages, in particular in the context of the development of AI, behavioural biases and network effects in the context of digital ecosystems.

It is also worth noting that a new section on assessing dominance in after-markets codifies the four-condition test set out by the case law, for when the primary market constrains market power on the after-market and excludes dominance on the after-market.

Collective dominance

The Guidelines now also cover guidance on collective dominance, again incorporating existing case law. The Guidelines clarify that, when collective dominance arises from structural or contractual links, it can exist between undertakings that are either horizontally or vertically connected. Collective dominance can also result from tacit collusion on the market, based on the Airtours criteria (transparency, deterrence and external stability).

Conduct distorting effective competition

The Guidelines include the first reference to “theories of harm” in official guidance by the Commission. In the context of its assessment of whether specific conduct distorts effective competition, the Commission commits to identifying the underlying theory of harm, by reference to the conduct’s potential impact on the competitive market structure and to the relevant parameters of competition.

It is on that basis that the Commission will then assess the two criteria that characterise abusive conduct, i.e., whether the behaviour of the dominant company (i) departs from competition on the merits and (ii) is capable of having exclusionary effects.

The Guidelines however highlight three scenarios where a distinct analysis of these two criteria is not required:

• Types of conduct which have their own specific analytical frameworks that have been recognised by the EU courts;
• Where it is established that the conduct is capable of excluding a hypothetical as efficient competitor (AEC test);
• Where it is established that the conduct is by its very nature harmful to competition – which establishes a category of “by-object” abuses similar to the by-object restrictions for anticompetitive agreements under Article 101 TFEU. 

In addition, the Guidelines clarify that, the more a given conduct is considered generally likely to distort effective competition, the less case-specific evidence is required to prove that the test is met. In extreme cases, the Commission may rely on a presumption that the conduct distorts effective competition. In that case, the burden of proof will be reversed, and it will be for the dominant company to provide sufficient evidence to rebut the presumption. This is the case in particular for exclusive dealing, for which a clear presumption (which will be difficult to rebut) has been introduced under the new Guidelines.

Outside these specific situations, the type of analysis to be applied in each case will depend on the conduct and on the legal and economic context. The assessment of pricing conduct will typically be based on the AEC test, applying a price-cost test, although the Commission considers that conduct having the actual or potential effect of impeding nascent competitors from entering the market may also be considered abusive.

While non-pricing conduct may also be assessed on the basis of the AEC test (in which case the notion of “efficient” can also relate to parameters of competition other than price, e.g. quality, innovation, choice), the Guidelines note that the concept may not be relevant for other types of non-pricing abuses, including in digital markets and ecosystems, where “as efficient competitors” are unlikely to emerge.

The Guidelines also require for the exclusionary effects to be attributable to the conduct in question. It is however sufficient for the conduct to increase the likelihood of the exclusionary effects materialising on the market, and the conduct does not need to be the sole cause of these effects. In order to prove causation, the Commission must normally establish a credible counterfactual scenario, but is not required to examine every possible alternative.

Analytical frameworks for specific types of conduct

The Guidelines provide guidance on conduct for which the EU courts have developed a specific analytical framework to determine whether the conduct distorts effective competition. They cover: predatory pricing, margin squeeze, rebates, exclusive dealing, tying and bundling, access restrictions, refusal to supply, self-preferencing, and a new category of “conducts that are by their very nature harmful to competition”. 

The sections on predatory pricing, margin squeeze, rebates, tying and bundling and refusal to supply mainly codify the well-established case law of the EU Courts and do not materially differ from the 2009 Guidance. 

Exclusive dealing now falls under the new presumption of competitive harm. The section covers both exclusive purchasing and supply obligations, which are considered highly likely to generate exclusionary effects when imposed by, or agreed with, a dominant company – even if the exclusivity is entered into at the request of the counterparty. Elements that may allow to rebut the presumption include the limited coverage and duration of the exclusivity, the absence of credible competitors from which the customer could have purchased, and the ability of rivals to compete effectively with the offer made by the dominant undertaking. When the presumption is rebutted, the Commission may still demonstrate an abuse based on a detailed analysis of the specifics of the case.

The section on access restrictions builds on the CJEU case law confirming that the Bronner criteria for essential facilities do not apply to all restrictions of access. As a result, the Guidelines state that access restrictions can distort competition even if the input at stake is not indispensable.

Self-preferencing, which has come under increasing scrutiny with the rise of digital platforms, is addressed in particular in the context of ecosystems, where the dominant company is able to control, in the leveraging market, the access of business partners to the ecosystem.

Finally, the Guidelines include a section on conduct that is by its very nature harmful to competition and is therefore deemed to distort effective competition. This is the case where the conduct has no economic interest for the dominant company other than that of restricting competition. Examples include pay-for-delay, dismantling infrastructures upon which competitors rely to be active in the market, or using regulatory powers to impose unfair and discriminatory conditions for market access. In such cases, the Commission argues that a rebuttal of the presumption of harm should be considered exceptional – as is the case under Article 101 TFEU for “by-object” infringements. 

Efficiency defence and objective justification

Conduct that distorts effective competition may still escape the Article 102 TFEU prohibition where it is objectively justified, either on the basis of objective necessity or by demonstrating efficiencies that counterbalance the competitive harm. 

Objective necessity can stem either from legitimate commercial considerations, including e.g. lack of technical solution to allow interoperability, protection of the security and integrity of the dominant company’s products or services, or from the pursuit of a public interest objective (health, safety, resilience). Companies will however be required to demonstrate that the objective could not be achieved through less restrictive means. 

On the efficiency defence side, there is increased alignment with the Article 101(3) TFEU analysis, with several references to the Vertical and the Horizontal Cooperation Agreements Guidelines, again closing up the gap between the analytical framework between Articles 101 and 102 TFEU.

The Guidelines also set out in detail the type of evidence required, with a particular focus on contemporaneous internal documents relating to the decision-making process. The assessment follows a sliding scale: the more harmful the conduct, the less likely an efficiency defence will succeed, and where conduct is found to be by its very nature harmful to competition, the Commission's experience indicates that attempts to justify it are very unlikely to succeed.

Implications for businesses

Reassess whether your business could be considered dominant, even with lower market shares

Businesses should conduct a fresh self-assessment in light of the Guidelines’ updated factors. Data assets, AI capabilities and data processing advantages should now be explicitly taken into account. Businesses in data-intensive or technology driven sectors may therefore face greater scrutiny. Businesses operating within ecosystems or benefiting from strong network effects should also pay particular attention to these dynamics.

Be aware of new areas of risk

Exclusive dealing, even at the request of customers, now is under a strong (albeit rebuttable) presumption that it will be deemed abusive.  Pay-for-delay (even outside of the pharma industry), unfair and discriminatory rules governing access to the market and failure to give access to even non-indispensable products or services should also be regarded with extreme caution.

Importance of internal documents

Aim to be in a position to provide a pro-competitive rationale for your commercial decisions. Internal documents evidencing an intent to restrict competition can be used against a dominant company and reviewing internal strategy documents, commercial playbooks and communications should be a key priority.

Be aware of the wider enforcement landscape

The Guidelines are intended not only to guide the Commission’s enforcement but also to influence national courts and NCAs across EU Member States. The framework set out in the Guidelines is therefore likely to shape enforcement activity across jurisdictions. The Guidelines also confirm that Article 102 TFEU can apply alongside sector-specific regulation, and that compliance with another regulatory regime does not automatically shield a business from competition law scrutiny.