EU Finalizes New Article 102 Abuse of Dominance Guidelines

The European Commission has adopted its final guidelines on the application of Article 102 TFEU to exclusionary abuses, replacing the 2009 enforcement priorities guidance effective October 10, 2026. These principles are binding on the Commission and are intended to provide greater legal certainty for dominant undertakings.

The new framework moves away from a uniform effects-based analysis and introduces a 'sliding scale' that organizes conduct into categories, each with its own presumptions and burden of proof. For example, exclusive dealing is now presumed to distort competition once established, shifting the burden to the company to rebut the presumption. Other practices like predatory pricing, margin squeeze, tying, and conditional rebates are given detailed, distinct analytical frameworks. The guidelines also clarify the role of the 'as-efficient competitor' test, acknowledging its importance while also outlining circumstances where it can be dispensed with, particularly where entrenched dominance makes the emergence of such a rival impossible.

Dominant firms, especially those in digital markets and ecosystems, must now self-assess their commercial practices against these more structured and nuanced standards, which could significantly alter their risk calculus for pricing and distribution strategies.