‘Abuse of Dominance’ Guidelines Adopted as Part of the Modernisation of EU Competition Law Enforcement and Policy

Introduction

The Guidelines set out a detailed framework for how the Commission will assess exclusionary conduct under Article 102 TFEU, which prohibits ‘abuses’ of a ‘dominant position’. Exclusionary conduct is conduct that hinders, through ‘methods’ different from those governing ‘normal competition,’ the ‘maintenance or growth’ of competition in a market. The Guidelines, adopted on 3 September 2026, follow a public consultation on a 2024 draft. In practice, they replace the shorter guidance on enforcement priorities relating to exclusionary conduct from 2009.

The Guidelines bring together recent Commission decisional practice and case law of the EU courts, as well as the Commission’s view on certain issues, into a single document which serves as a guide for assessing dominance, exclusionary conduct and possible justifications. The Guidelines reflect the Commission’s thinking, while still leaving the Commission meaningful enforcement discretion. 

Dominance: market-share guidance, with continued flexibility

Dominance is the starting point for any abuse of dominance case. Market share is an important factor in assessing dominance but is not determinative on its own. A market share of 50% or more held over a sustained period is considered, save in exceptional circumstances, evidence of dominance, while dominance is (still) generally unlikely below 40%. Dominance could be found where shares are below 40%, for instance where customers are generally dependent on the dominant undertaking, or where its competitors face significant capacity limitations.

Key principles to determine whether conduct ‘distorts’ effective competition

The Commission makes clear that holding a dominant position is not in itself unlawful, and dominant businesses are ‘entitled to compete on the merits’. However, they have a ‘special responsibility’ not to engage in conduct that ‘distorts effective competition’. Conduct is considered to distort competition if it: (i) departs from ‘competition on the merits’ and (ii) is capable of having exclusionary effects. There is no legal requirement to show direct harm to consumers.

The Commission’s position on the evidential burden

The Commission also discusses the evidence required. The more a type of conduct is likely to distort ‘effective competition,’ the less case-specific evidence is considered necessary, and vice versa.

Rebuttable presumptions continue to apply where there is an established framework for the conduct in question. For instance, regarding the abuse of ‘exclusive dealing’ a presumption arises once exclusivity with the dominant business is established, i.e. that the conduct distorts effective competition. This can be rebutted by the dominant business with evidence such as the limited coverage or duration of the arrangement, or that its exclusionary effects are purely hypothetical.

The ‘as-efficient-competitor’ test: confirmed for pricing, but otherwise not a routine requirement

For conduct relating to pricing, the relevant test, according to the Guidelines, is whether the conduct is capable of excluding a hypothetical competitor that is ‘as efficient’ as the dominant company. The analysis is generally undertaken by way of a price-cost test, comparing the dominant company’s prices and costs with those of an equally efficient competitor. If such a competitor could be excluded, the Commission does not need to establish separately that the conduct departs from competition on the merits.

For non-pricing conduct, by contrast, excluding an equally efficient competitor is not a general requirement. The assessment may instead focus on other types of exclusionary effects, and the EU Courts have not required evidence of exclusion of a hypothetical equally efficient competitor across a range of non-pricing conduct.

This distinction can be particularly relevant in ‘digital markets and ecosystems’, where the concern may be that conduct impedes the entry or growth of competitors rather than excluding an already equally efficient rival. The Guidelines note that, in this context, features such as innovation, access to data, multi-sidedness, user behaviour or network effects can play a ‘decisive role’. 

In addition, the Guidelines consider there are scenarios where the emergence of an equally efficient competitor would be ‘practically impossible’ due to the large market share of the dominant business, significant barriers to entry or expansion, or the existence of regulatory constraints. 

Conduct-specific frameworks are an important part of the Guidelines

The Guidelines set out specific analytical frameworks for certain types of conduct, while for others they provide guidance on how the general principles apply. The aim is to allow businesses and their advisors to ‘self-assess’ specific types of conduct. In particular, longer established abuses each have a section of the Guidelines explaining their assessment: ‘predatory pricing’, ‘exclusive dealing’, ‘tying and bundling’, ‘refusal to supply’, ‘margin squeeze’ and ‘self-preferencing’. There is also a section of the Guidelines relating to ‘access restrictions’ - in simple terms, refusals by a dominant business to provide access to an input (i.e. a ‘type of asset’ including networks, IP or data), even where that input is not ‘indispensable’ for the business requesting access – arguably a ‘less established’ abuse.  

Greater scope, but high hurdles for objective justification and efficiencies

Abusive conduct can otherwise escape falling foul of Article 102 TFEU if it can be ‘objectively’ justified. The Guidelines set out the general principles applicable to this, i.e. (i) the conduct is objectively necessary (‘objective necessity defence’) or (ii) produces efficiencies that counterbalance, or even outweigh, the negative effect of the conduct (‘efficiency defence’).

For point (i), the conduct must be objectively necessary to achieve a ‘legitimate aim’, e.g. protecting the integrity or security of its own services, or applying below-cost price reductions to deplete obsolete stock. The conduct may also relate to the pursuit of a ‘genuine and objectively defined’ public interest objective - meaning one set by legislation, soft law, or impartial standardisation processes - such as genuine and evidence-based public health objectives, product safety, network safety, or contribution to the EU’s resilience. The Guidelines leave this category open to other public interest considerations not further specified. In addition, the conduct needs to be proportionate to the aim, a requirement that is not met where the same aim could be achieved through less restrictive means.

For point (ii), the efficiency defence requires four cumulative conditions to be met: ‘verifiable’ efficiencies, benefits sufficient to counteract the harm to competition and consumers, indispensability of the conduct to achieve them, and no elimination of effective competition. In assessing the second condition, the Guidelines recognise that sustainability benefits such as lower raw-material use, cleaner production, recyclability and more resilient infrastructure can count as qualifying efficiencies, and that, in limited circumstances, benefits arising outside the directly affected market may also be taken into account, provided the consumers harmed by the conduct substantially overlap with those benefiting.

Conclusion

It is helpful to have structured Guidelines that also more broadly reflect the Commission’s thinking and approach. This should bring greater predictability as to how the Commission will approach particular issues and types of conduct, and greater consistency in the enforcement of Article 102 TFEU more generally.

The greater detail on the approach to assessment does not, however, make the assessment mechanical and there is (unsurprisingly) room for interpretation (on the side of the Commission, and of businesses and their advisors). The applicable analytical approach and evidentiary burden will continue to depend on the nature and characterisation of the conduct, including whether a specific framework or rebuttable presumption applies. At the same time, the considerably expanded discussion on objective necessity and efficiencies (compared to the 2009 guidance) gives businesses clearer indications of the types of legitimate commercial rationales and benefits that may be relevant. In practice, businesses should document the commercial rationale for their conduct at the time decisions are taken, rather than reconstructing it later.