EC Guidelines Overhaul Article 102 Exclusionary Abuse Enforcement
The Commission's new Article 102 TFEU exclusionary-abuse guidelines replace the 2008 guidance from 10 October 2026, reviving presumptions, widening digital and buyer-side scrutiny, and flagging algorithmic pricing.
On 3 September 2026 the European Commission adopted long-awaited guidelines on the assessment of exclusionary abuses under Article 102 TFEU, replacing the 2008 enforcement-priority guidance with effect from 10 October 2026. The 70-plus page text reinstates a soft safe harbour at 40% market share, presumes dominance above 50% (rebuttable only exceptionally), adds digital-specific dominance indicators (data advantages, AI entry barriers, high sunk costs, lock-in, network effects), and sets a cumulative four-prong after-markets test. It also extends scrutiny to buyer-side dominance over suppliers and flags algorithmic pricing as a potential collective-dominance trigger.
The two-limb framework — departure from competition on the merits plus exclusionary effects — survives, but the Commission leans on presumptions: a sliding scale adjusts the burden of proof to the harmfulness of the practice, the as-efficient-competitor test narrows largely to pricing conduct, and conduct harmful in its nature (pay-for-delay, dismantling competitor infrastructure) is treated as effectively indefensible. Exclusive dealing keeps a near-irrebuttable presumption, diverging from recent Court of Justice case law, and access restrictions become a lower-threshold stand-alone category that does not require indispensability. The efficiency defence widens to sustainability benefits and out-of-market synergies, but must be objective, concrete and verifiable.
Watch for Digital Markets Act overlap, national authority adoption, and early enforcement cases testing these presumptions.