Practitioners Fault EU Article 102 Guidelines on Proof and Foreclosure
At a Baker Botts-sponsored competition panel, lawyers and economists said the Commission's new exclusionary-abuse Guidelines drift from EU case law, easing the proof standard to "capability to foreclose."
Client takeaways from the 14th Global Antitrust Hot Topics conference (24 September 2026) raise real doubts about the Commission's Article 102 TFEU Guidelines on exclusionary abuses, adopted 3 September 2026. Panelists — from Cornerstone, the European University Institute, Baker Botts and CCIA Europe — described the text as largely a codification of Court of Justice case law, and flagged specific points where it goes further: the shift from a "likelihood" to a "capability to foreclose" standard, which lowers the Commission's evidentiary burden; paragraph 24's indication that dominance can be found below 40% market share, undercutting the 2009 Guidance Paper safe harbour; and paragraph 58's cost-of-proof presumption. A new qualification in paragraph 157(b) limiting exclusive-dealing counterfactuals drew criticism as unsupported by Qualcomm. Because Article 102 is enforced administratively, the Guidelines will likely carry unusual weight, and panelists expect other jurisdictions to model their own unilateral-conduct guidance on them. Watch for Commission decisions testing paragraphs 24, 58 and 157(b), and for tension with DMA gatekeeper designations.