On 3 September 2026, the European Commission adopted its Guidelines on the application of Article 102 TFEU to exclusionary abuses of dominance. Published in the Official Journal on 9 September 2026, the Guidelines aim to provide greater legal certainty and consistency in the enforcement of Article 102.
The final text introduces several important adjustments to the 2024 draft, without returning to the approach of the 2009 Guidance Paper.
In particular:
- Dominance is generally considered unlikely below a 40% market share, while a share of 50% or more held for a significant period constitutes evidence of dominance, save in exceptional circumstances.
- Presumptions remain for certain forms of conduct, including exclusive dealing and exclusivity rebates, within a new “sliding scale” of evidentiary requirements.
- The role of the as-efficient competitor principle (AEC) depends on the conduct concerned, with price-cost tests remaining central to the assessment of pricing practices.
- Data-driven advantages, digital ecosystems, network effects and access to computational power are expressly recognised as relevant to the assessment of dominance.
- Objective justification and efficiencies receive substantially more detailed treatment, increasing the importance of contemporaneous evidence supporting commercial rationale and expected consumer benefit.
The final text also expressly refers to a “theory of harm” and gives greater prominence to consumers and consumer welfare.
For businesses that hold, or may be found to hold, a dominant position, the Guidelines make it particularly important to review potentially sensitive practices and document the rationale and expected efficiencies underlying relevant commercial decisions.
Our Competition Law team has prepared a detailed analysis of the new framework, the principal changes from the 2024 draft and their practical implications for businesses.
