On September 3, 2026, the European Commission (EC) adopted its first Guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union (TFEU) to exclusionary abuses of dominance (the Guidelines). The Guidelines provide a comprehensive framework for assessing dominance, exclusionary conduct, and objective justifications under European Union (EU) antitrust rules. The EC intends the Guidelines to increase legal certainty and help companies self-assess their conduct, while also providing a non-binding reference point for European national competition authorities and courts.1
The Guidelines replace the EC’s 2008 Guidance on enforcement priorities for exclusionary conduct, which will cease to apply 30 days after the Guidelines are published in the Official Journal.2
The EC characterizes the Guidelines principally as a systematization of the EU Courts’ case law and the EC’s enforcement practice, and therefore expects a high degree of continuity in enforcement.3 At the same time, the Guidelines provide substantially more detailed, operational guidance and expressly address modern market features, including data, digital ecosystems, artificial intelligence (AI), and aftermarkets.
Notably, the final Guidelines have not retained some elements of the 2024 draft that drew the heaviest criticism, such as a proposal to rely extensively on presumptions of competition harm to several categories of conduct that are not harmful by their very nature. The final text limits the presumption to exclusive dealing and adopts a more calibrated case-by-case assessment elsewhere. At the same time, the Guidelines make clear that, under EU law, the standard for conduct such as tying, access restrictions, interoperability, and self-preferencing is lower than in the U.S.
While the Guidelines concern exclusionary conduct, the EC has established that it will continue pursuing exploitative abuses where appropriate and may provide guidance on such conduct at a later stage.4
1. Assessing Dominance: A 40 Percent Soft Safe Harbor, Digital Ecosystems, and Aftermarkets
The Guidelines have retained the 2008 Guidance presumption against dominance where a company has a market share below 40 percent.5 The threshold is only a soft safe harbor: the EC may still find dominance below 40 percent, for example where customers are dependent on the company or competitors face serious capacity constraints.6 A market share of 50 percent or more continues to be particularly significant evidence of dominance.7
The Guidelines also make clear that market shares may tell only part of the story in innovative and digital markets. Data-driven advantages may create entry barriers where a company has access to unique or non-replicable data, benefits from data-related economies of scale or network effects, or has superior capabilities to process and use data.8 The Guidelines expressly identify access to large, high-quality datasets and computational power as potentially important in AI development.9
Digital ecosystems receive specific attention as well. The EC notes that interlinked products, services, and platforms can reinforce market power through network effects, lock-in, switching costs, and data advantages extending across multiple products.10 These considerations carry relevance for companies operating integrated product ecosystems or controlling important interfaces between complementary services.
The Guidelines also introduce a dedicated framework for aftermarkets, such as secondary products or services used with a previously purchased durable product. The EC identifies four cumulative conditions for determining when competition in the primary market sufficiently constrains market power in the aftermarket, focusing in particular on whether customers can and do make informed lifecycle purchasing decisions and whether they would change their primary-product purchasing behavior in response to worsening aftermarket conditions.11 This may be pertinent to businesses supplying equipment together with software, consumables, maintenance, or other related services.
2. An Effects-Based Framework: Sliding Scale of Evidential Burdens and AEC Test Centered on Pricing Abuses
The Guidelines organize the abuse analysis around two concepts: whether conduct (1) departs from competition on the merits and (2) is capable of producing exclusionary effects. The two inquiries are conceptually distinct, but the EC may address them in different orders, devote different levels of analysis to each, and rely on overlapping evidence.12 The Guidelines also specify that the two steps need not always be demonstrated separately: this is the case where the conduct (1) meets the requirements of a specific analytical framework recognized by the EU Courts, such as those applicable to margin squeeze, exclusive dealing, tying and bundling, or refusal to supply; (2) is capable of excluding a hypothetical equally efficient competitor (AEC); or (3) is by its very nature harmful to competition.13
For the concept of competition on the merits, the Guidelines identify certain “strong indications” based on enforcement experience, including misleading public bodies, misusing regulatory or judicial procedures, or violating other legal rules in a way that negatively affects price, choice, quality, or innovation.14
For the effects analysis, the EC considers it helpful—though not required—to articulate a theory of harm explaining the mechanism through which conduct may affect market structure or parameters such as price, quality, innovation, or choice.15
For establishing that conduct distorts effective competition, the Guidelines adopt a sliding scale of evidential burdens: the more a practice is generally considered likely to distort effective competition, the less case-specific evidence may be required.
In some circumstances, establishing particular factual elements triggers a rebuttable presumption that the conduct distorts effective competition and shifts the evidentiary burden to the dominant company.16 According to the Guidelines, exclusive dealing is the clearest example: once the conduct qualifies as exclusive dealing, it is presumed to distort effective competition, subject to rebuttal.17
Other conduct is articulated differently rather than placed under the same presumption. For predatory pricing, pricing below the applicable cost benchmarks is sufficient to establish that the conduct distorts effective competition.18 For margin squeeze, where the margin of a hypothetical equally efficient downstream competitor is negative, the EC considers exclusionary effects probable and may, absent contrary evidence, conclude that the practice distorts effective competition.19 For tying, the required depth of analysis depends on the characteristics of the products and markets: in some cases, the EC may be able to establish likely exclusionary effects with a relatively limited analysis, while in others, such as where the tied product is free and alternatives are easy to obtain, a closer examination may be required.20
At the strongest end of this spectrum, the Guidelines identify conduct that is “by its very nature harmful to competition.”21 Examples include certain payments designed to delay or prevent customers from selling a rival’s product, dismantling infrastructure on which a competitor relies, and rules imposed by a company combining regulatory and commercial functions that give it discretionary power to deny competitors market access without sufficiently objective, transparent, precise, and nondiscriminatory safeguards.22 Once conduct falls within this category, it is deemed as such to distort effective competition. Pending further guidance from the EU Courts, the EC considers that a challenge based on the absence of exclusionary effects would succeed only in very exceptional circumstances.23
Finally, the Guidelines also clarify that the AEC concept is not a universal Article 102 test.24 It remains relevant to pricing conduct, but for non-pricing conduct the EC may rely on other evidence, including in digital markets and ecosystems where innovation, access to data, user behavior, or network effects play a decisive role, and where dynamic considerations may therefore be significant. Multi-faceted strategies combining pricing and non-pricing elements are assessed case by case.
3. Specific Guidance on Self-Preferencing and Access Restrictions
The Guidelines state that “there is no general rule that self-preferencing is problematic,” even where the company is dominant.25 Nevertheless, the EC identifies potential concerns where a dominant company leverages its position in one market to favor its own products in another, particularly where it controls the conditions of access to the leveraged market or to an ecosystem.26 Self-preferencing remains subject to the general two-element framework of departure from competition on the merits and capability to produce exclusionary effects, with the EC identifying certain factors as important to that assessment.27
In light of recent case law, which has significantly lowered the threshold in this area, the Guidelines also draw an important distinction between access restrictions and the narrower category of a traditional refusal to supply. Access restrictions include situations where a dominant company denies access to an input on commercially viable terms or otherwise hinders or delays access.28 Inputs are defined broadly and can include goods, services, infrastructure, networks, intellectual property, and data.29 They may also include steps required to make an input accessible, such as producing interoperability information or adapting technical systems.30 Critically, the input need not be “indispensable” for an access restriction to infringe Article 102.31 The importance of the input remains relevant to the likelihood of exclusionary effects, but the strict indispensability requirement associated with traditional refusal-to-supply cases does not generally apply.
The EC also gives practical examples of potentially abusive access restrictions, including withholding an input developed for third-party use, failing to comply with statutory, regulatory, or contractual access obligations, imposing unfair or unreasonable access conditions, failing to provide fair and transparent access terms, and delaying responses, negotiations, or contracting.32
4. Objective Justifications: More Detailed Guidance, More Evidence
The Guidelines substantially expand the EC’s guidance on how a dominant company can justify conduct that would otherwise distort effective competition on account of either objective necessity or efficiencies.
Objective necessity may arise from legitimate commercial considerations or genuine public-interest objectives. The Guidelines identify, among other examples, protection against unfair competition or abnormal customer orders, integrity or security of services, technical requirements, evidence-based public health objectives, product and network safety, and, in appropriate cases, EU resilience.33
The efficiency defence can encompass cost and qualitative efficiencies, including dynamic and longer-term efficiencies arising from R&D, innovation, and infrastructure investment.34 The Guidelines make the practical expectations particularly clear. Pertinent evidence may include contemporaneous internal decision-making documents, financial and accounting materials, historical evidence, expert studies, and economic models.35
Efficiencies should be quantified where reasonably possible, and the company should be able to explain why less restrictive alternatives would not achieve comparable efficiencies.36
What Should Companies Do Now?
Companies with potentially significant market positions should consider reviewing their Article 102 compliance framework in light of the new Guidelines, with particular attention to:
- dominance assessment, including not only market shares but also customer dependence, data advantages, network effects, ecosystem dynamics, and aftermarkets;
- whether potentially sensitive conduct is subject to a presumption or falls within the category of conduct that is “by its very nature harmful to competition”;
- platform and ecosystem practices, including self-preferencing, ranking and steering, interoperability, access to data or technical interfaces, and governance of access by businesses that also compete within the ecosystem; and
- contemporaneous documentation of legitimate rationales and efficiencies, including technical, security, public health, investment, and innovation considerations, and the assessment of less restrictive alternatives.
These considerations should inform product, pricing, access, and strategic decision-making on an ongoing basis, rather than being addressed only once an investigation begins.
For more information, please contact Jindrich Kloub, Deirdre Carroll, or any member of the Wilson Sonsini Goodrich & Rosati’s Antitrust and Competition practice.
Michelle Zang contributed to the preparation of this alert.
[1] EC, Guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union (TFEU), paras. 7-8.
[3] EC, Guidelines on exclusionary abuses of dominance – Technical Q&A, Question 13.
[4] EC, Commission adopts EU Guidelines on exclusionary abuses of dominance (September 3, 2026), available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_26_1769.
[11] Guidelines, paras. 38-40.
[12] Guidelines, paras. 59-60.
[13] Guidelines, paras. 62-65, and 107.
[15] Guidelines, paras. 56-57.
[17] Guidelines, paras. 155-161.
[21] Guidelines, Section 4.10.
[24] Guidelines, Section 3.3.2.
[27] Guidelines, paras. 195-196.
[29] Guidelines, footnote 369.
[33] Guidelines, paras. 207-211.
