EU Commission Guidelines Codify Article 102 Exclusionary Abuse Rules
The first-ever Commission guidelines on exclusionary abuses of dominance replace the 2008 enforcement priorities paper from 10 October 2026, signalling where presumptions of infringement will and will not apply.
On 3 September 2026 the European Commission adopted guidelines on exclusionary abuses of dominance under Article 102 TFEU — the first of their kind — replacing the 2008 enforcement priorities paper, which ceases to apply from 10 October 2026. The text codifies existing case law and, importantly, maps where presumptions of distortion of effective competition apply: exclusive dealing and exclusivity rebates attract a rebuttable presumption, while self-preferencing attracts none and requires a full competition-on-the-merits plus exclusionary-effects assessment. Conduct "by its very nature harmful", such as paying customers not to use a rival or dismantling rival-dependent infrastructure, may be found infringing without those analyses.
Dominance remains binary: shares below 40% make it unlikely, 50% or above may be evidence in themselves, and the Commission flags algorithmic transparency as a driver of tacit collective-dominance findings. Objective necessity — expressly including contributions to EU security and resilience — and verifiable efficiencies, including sustainability and innovation incentives, remain defences. Infringement decisions expose firms to fines of up to 10% of worldwide turnover, remedies, and follow-on damages claims in national courts.
Counsel should treat the guidance as an evidentiary prompt: audit pricing, rebate and access rationales now, because contemporaneous records will carry the rebuttal.