EU Commission Issues New Article 102 Dominance Guidance on Rebates, Self-Preferencing
The Commission has reportedly adopted updated Article 102 TFEU dominance guidelines targeting rebates, self-preferencing and digital gatekeeper conduct, resetting the compliance benchmark for European competition counsel.
The European Commission has adopted new dominance guidance under Article 102 TFEU, according to this Skadden report. The firm describes it as targeting rebates, self-preferencing and digital platforms, and frames the move against long-running flux in Article 102 case law, including the economics-driven 2009 guidance adopted after what was seen as the rigidity of 1980s and 1990s jurisprudence.
For counsel, the significance is threefold. Any revision re-calibrates the risk calculus for pricing and loyalty rebates, discount structures and most-favoured-nation clauses embedded in ordinary EU distribution agreements. Self-preferencing is the contested doctrine at the centre of current Article 102 debate, so guidance-level treatment will shape how vertically integrated conduct is documented and defended. The report also signals continued emphasis on digital gatekeepers, linking dominance analysis to obligations under the Digital Markets Act.
Next steps: clients with EU-facing rebate structures, exclusivity terms or platform distribution arrangements should re-run dominance exposure assessments once the full text is public. Watch for consistency questions from national competition authorities and the Court of Justice. Adoption date, scope and any evidentiary presumptions are not stated in the excerpt available and should be confirmed against the published text.