New European Guidelines on exclusionary abusive conduct by dominant undertakings.

On 3 September 2026, the European Commission adopted the new Guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) to abusive exclusionary conduct by dominant undertakings (available here).

These new Guidelines replace the previous Guidelines on the Commission’s enforcement priorities in this area, which had been in force since 2009, and provide analytical guidance adapted to the current economic reality and to developments in the case law of the EU courts.

Context

Article 102 prohibits dominant undertakings from engaging in abusive conduct, including conduct aimed at excluding competitors from the market, such as setting predatory prices, squeezing margins or refusing to supply goods or services. Such conduct is considered harmful as it prevents other operators from competing fairly in the market and results in, inter alia, higher market prices, a reduction in consumer choice and a deterioration in product quality.

In this context, the new Guidelines set out a series of principles and orientations for assessing whether the conduct of dominant undertakings amount to exclusionary abuses under Article 102 of the TFEU.

Among the objectives of the Guidelines, the European Commission highlights the following:

• To strengthen legal certainty by making it easier for undertakings to determine whether or not they hold a dominant position in the market, either on their own or jointly with other undertakings, and, in the affirmative, to provide criteria to enable them to ascertain the extent to which their commercial practices deviate from competition on the merits and whether they give rise to an anti-competitive exclusionary effect.

•  To contribute to the modernization of EU competition policy, so that it adapts to the new realities facing businesses and to new market contexts.

•  To improve consistency in the application of Article 102 TFEU, from the perspective of both national competition authorities and economic operators.

Key new developments

Guidance on the assessment of a dominant position

Broadly speaking, the Guidelines retain the traditional criteria used to determine when an undertaking holds a dominant position, such as market shares or the existence of barriers to entry, although significant changes have been introduced in the form of new sections on secondary markets or ‘after-markets’ and situations of collective dominance. 

With regard to after-markets —secondary markets concerned with the supply of products used in connection with a durable good that has already been purchased (the primary product)— teh Guidelines foresee that an undertaking may be dominant in the primary market, the secondary market, or both. To assess dominance in these secondary markets, the following four conditions must be met cumulatively:

1.     Customers are able to make an informed decision, taking into account ‘lifecycle pricing’ across various suppliers.

2.     It is likely that customers will make such an informed decision.

3.     If there is an apparent policy of exploitation, such as a significant price increase in the secondary market, a large number of customers would adapt their behaviour in the primary market.

4.     Customers would adapt their purchasing behaviour within a reasonable period of time.

With regard to situations of collective dominance, the Guidelines set out, on the one hand, the scenario of collective dominance arising from structural, contractual, or other links between undertakings that enable them to act jointly in the market as a collective entity. On the other hand, they set out the criteria for collective dominance arising from tacit coordination between undertakings, establishing four factors that must be assessed jointly: (1) the possibility of reaching terms of coordination; (2) the ability to monitor whether the other undertakings comply with the terms of coordination; (3) the existence of a credible deterrence mechanism; and, finally, (4) external stability, in the sense that competitors or customers cannot thwart the outcome of the coordination.

Indicators for assessing abusive conduct and its classification according to the nature of the exclusionary effects

The Guidelines define abusive conduct as conduct that departs from competition on the merits. In this regard, relevant indicators that the conduct departs from competition include the dominant undertaking providing misleading information to authorities, abusing legal and regulatory procedures to prevent new competitors from entering the market, or breaching regulations in other areas of the legal system, thereby adversely affecting competition.

The Guidelines also provide an analytical classification of abusive conduct according to the type of exclusionary effect it produces.

First, there is price-based abusive conduct (‘pricing conduct’), which includes predatory pricing, margin squeeze and conditional rebates. These pricing behaviours are analysed by using a price-cost test. Second, there is non-pricing conduct, such as exclusive dealing, access restrictions or refusal to supply. Third, there is multi-faceted conduct, which combines elements of the two previous categories.

When analysing non-pricing conduct, the Guidelines specify that the ‘hypothetical equally efficient competitor’ test is not relevant in all scenarios. This is particularly the case in digital markets and ecosystems, where network effects, access to data, innovation and user behaviour play a decisive role, but the exception is not limited to those settings. Consequently, in certain cases, other considerations should be taken into account, such as whether the conduct prevents competitors, whether actual or potential, from benefiting from demand-side advantages.

More detailed and up-to-date guidance on specific types of exclusionary conduct

Alongside these general principles, the Guidelines set out the relevant tests that case law has established for analysing specific abusive conduct: predatory pricing, margin squeeze, exclusive dealing, tying and bundling of products, and refusal to supply. It should be noted that the Commission treats access restrictions as a separate category of abuse, distinct from refusal to supply.

• In the case of exclusive dealing, predatory pricing, margin squeeze or conditional rebates, the relevant analytical frameworks generally lead to a rebuttable presumption or finding that the conduct is capable of producing exclusionary effects, although each type is subject to its own specific test. Where a presumption applies, the dominant undertaking may seek to rebut it by providing evidence that the conduct does not distort effective competition.

• In the case of refusal to supply, the Guidelines require that the good or service serving as an input must be indispensable for competing in the downstream market and that the refusal to supply be capable of eliminating all effective competition.

Furthermore, the Guidelines also emphasise the importance, devoting a separate specific section to it, of a dominant undertaking’s favourable treatment of its own products, also known as ‘self-preferencing’.

Finally, of note is the inclusion of a section on conduct which, by its very nature, is harmful to competition, that is, conduct which serves no economic interest for the dominant undertaking other than to restrict competition. The Guidelines identify as such payments made by the dominant undertaking to customers to prevent them from selling products from a specific competitor, or agreements between the dominant undertaking and its distributors to replace a competitor’s product with its own at a lower price. In order for the undertaking to justify this type of conduct, it must demonstrate an objective justification by proving that the conduct was necessary to achieve a legitimate objective and that it generates efficiencies that offset its negative effects on competition.

Assessment

Ultimately, the new Guidelines aim to provide greater predictability and legal certainty in the application of Article 102 of the TFEU by competition authorities. This new framework offers greater clarity, to dominant undertakings, their suppliers and customers, and, ultimately, the market as a whole, on when conduct may be presumed to constitute an abuse due to its exclusionary effects.

Furthermore, the Guidelines provide a more comprehensive analytical framework tailored to digital markets, with particular attention paid to network effects, digital ecosystems and the treatment of ‘self-preferencing’ as a distinct category of abuse.