Smart Alert | New European Commission guidelines on abusive exclusionary conduct by dominant undertakings (Article 102 TFEU)

Smart Alert | New European Commission guidelines on abusive exclusionary conduct by dominant undertakings (Article 102 TFEU)

On 3 September 2026, the European Commission adopted its guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union (hereinafter the “TFEU”) to abusive exclusionary conduct by dominant undertakings (hereinafter the “Guidelines”).

The Guidelines replace the 2008 Communication on the Commissions enforcement priorities in applying Article 82 of the EC Treaty (hereinafter the “2008 Communication”), which will be repealed 30 days after the publication of the Guidelines in the Official Journal of the European Union, which took place on 9 September 2026 (i.e., as from 10 October 2026).

This new text is the outcome of a consultation process launched by the Commission in March 2023, including a public consultation in 2024 and a stakeholder workshop in 2025.

These Guidelines introduce several major changes for dominant undertakings active in the European Union.

An indicative 40% market share threshold for assessing dominance.

Below this threshold, dominance will be considered unlikely. This threshold does not, however, constitute a “safe harbour”: the Commission will continue to assess all the circumstances of the market, including barriers to entry, countervailing buyer power, and the undertaking’s integration across different market levels. This threshold, absent from the 2024 draft, was reintroduced in the final text.

The digital economy is subject to specific developments.

The Guidelines clarify how the Commission will assess dominance in digital markets, paying particular attention to the role of data, to integrated platforms and ecosystems, to related markets and to situations of collective dominance.

Collective dominance.

The Guidelines develop the concept of collective dominance, based in particular on tacit coordination. Derived from case law, this concept refers to a situation in which two or more legally independent undertakings present themselves or act together, from an economic point of view, on a given market and are able to behave, to an appreciable extent, independently of their competitors, their customers and, ultimately, consumers.

New categories of exclusionary conduct are addressed.

In addition to the practices already covered by the 2008 Communication (exclusive dealing, tying and bundling, refusal to supply, predatory pricing, margin squeeze), the Guidelines now set out the analytical framework applicable to self-preferencing and access restrictions, which are particularly relevant for undertakings operating digital platforms.

All exclusionary practices are now covered by their own analytical framework.

Each type of conduct is subject to its own analytical framework or set of conditions for determining whether or not it is anticompetitive. The Guidelines also identify a distinct category of conduct regarded as inherently harmful to competition by its very nature: for example, paying customers on condition that they do not sell the products of a competitor of the dominant undertaking, or dismantling infrastructure used by a competitor.

The framework for objective justifications and efficiency gains is clarified.

A dominant undertaking may still justify its conduct by showing that it is objectively necessary or that it generates efficiency gains outweighing the anticompetitive effects identified, the Guidelines now providing more concrete guidance on the conditions and standard of proof expected from the dominant undertaking.

Our recommendation: beyond serving as an interpretive tool for regulators, this text can double as a self-diagnostic checklist for dominant undertakings. It may be worth revisiting, at this stage, pricing policies, exclusivity clauses, the access terms granted to third parties, and any practice favouring one’s own products or services, so as to secure in advance any justification arguments that may be required.

We can assist you with the review of your commercial, pricing, exclusivity and access practices in light of these new Guidelines, in France and across the European Union.