European Commission’s new Guidelines for assessing exclusionary abuses of dominance: softening its more aggressive approach (only) around the edges

The European Commission has adopted its final Guidelines on exclusionary abuses of dominance, two years after publishing its initial consultation draft (see our previous blog). Following the consultation, the Commission has largely held its ground while refining and softening some of the more controversial aspects of the draft. As a recap, the 2024 draft was criticised for having moved too far from settled EU case law and having sought to materially lower the bar for intervention. This understandable criticism is only partially addressed by the final guidelines.

The more aggressive core framework survives 

While seeking to reflect the Commission’s interpretation of EU Court judgments over the last two years, the final Guidelines essentially preserve the central architecture proposed in the 2024 draft.

The Commission continues to distinguish between different categories of conduct and different evidential pathways. Some forms of conduct – such as exclusivity rebates – remain subject to a low burden of proof for the Commission, instead shifting the burden to companies to explain why the conduct should not be regarded as anti-competitive. Other forms of conduct – like non-exclusivity rebates or self-preferencing – continue to require more detailed evidence by the Commission that the conduct may harm competition. This proposed framework leads to siloed theories of harm, with different evidentiary burdens as to what constitutes a distortion of competition – as opposed to an overarching requirement for the Commission to undertake a detailed effects-based assessment of anti-competitive foreclosure. 

The consultation process nevertheless left its mark on the final text. The Commission places far greater emphasis on consumer welfare and explains in more detail how companies can rebut practices presumed to be anti-competitive or otherwise defend them based on efficiencies and objective justifications.

The final text also gives stronger recognition to the established case law that dominance – a pre-requisite for Article 102 to apply – is generally likely above a 50% market share and generally unlikely below 40%. This is a welcome development and moves away from some of the draft's most controversial suggestions regarding possible dominance even in case of very low market shares.

A more interventionist enforcement philosophy remains

Despite some improvements, the Commission's broader policy objective remains largely unchanged.

As was clear from the moment the Commission launched its Article 102 rehaul in 2023 (see our previous blog), the goal remains to lower the bar for intervention. The Guidelines seek to achieve this by focusing on those aspects of EU case law that facilitate Commission enforcement rather than those that constrain it. The Guidelines are not, in practice, a neutral summary of the state of the EU case law. 

The treatment of the “as efficient competitor” (AEC) principle – the cornerstone of assessing exclusionary abuses – illustrates this trend. While the final Guidelines acknowledge the relevance of AEC principles more clearly than the draft, they devote significant attention to explaining circumstances in which an AEC analysis may not be suitable or necessary, relying on a highly selective reading of EU case law – for example suggesting it “may” not be relevant in digital markets or ecosystems. Despite these efforts to downplay the AEC principle, the Guidelines – inevitably, given EU case law – acknowledge it. This means the Commission will unlikely be able to avoid Intel-like sagas in future cases: even if the Commission considers it must not pro-actively bring forward a detailed AEC analysis, it will, however, have to engage with such evidence brought forward by the company under investigation – meaning this principled approach is unlikely to generate any procedural efficiencies in practice. 

What does this mean in practice?

Some conduct remains inherently high risk

Certain categories of conduct remain particularly sensitive. Exclusive dealing arrangements, exclusivity rebates, below-cost pricing, and some tying & bundling strategies continue to attract especially close scrutiny under the Commission's framework. 

Avoid "naked restrictions"

The lowest intervention threshold is reserved for conduct that appears to lack any credible business justification other than restricting competitors – described in the Guidelines as conduct that is “by its very nature harmful to competition” and carrying a strong presumption of distorting effective competition. While acknowledging that the EU Courts have not made such a determination, the Commission takes the position that rebutting this presumption will only be successful “very exceptionally” and attempts to demonstrate such conduct is justified is “very unlikely to be successful”. 

Examples discussed in the Guidelines include companies paying their customers under the condition they do not deal with competing suppliers, dismantling infrastructure that is essential for competitors to operate, or bodies with a commercial and regulatory function (e.g. organising sports events) devising a rulebook they can use to deny competitors’ market access. 

Companies should be particularly cautious where a proposed initiative cannot be supported by a legitimate commercial rationale beyond harming competitors.

DMA compliance is not enough

The repeated references to digital markets confirm that Article 102 enforcement will continue alongside the Digital Markets Act rather than being replaced by it. Designated gatekeepers should therefore continue assessing potentially sensitive practices under both regimes. Compliance with the DMA will not eliminate Article 102 exposure. 

Document business justifications early

One of the most welcome developments in the final Guidelines is the significantly expanded guidance on what the Commission accepts as business justifications because the conduct is objectively necessary or creates relevant efficiencies. Businesses concerned should take advantage of this by ensuring that genuine consumer benefits, efficiency gains and legitimate commercial objectives sought by their commercial conduct are documented from the outset. Genuine and well-documented business justifications are likely to play an increasingly important role in future Article 102 investigations.

Looking ahead

The final Guidelines can be seen as an attempt to bring together an increasingly complex body of Article 102 case law and Commission practice into a more coherent framework. They undoubtedly improve legal certainty compared to the recent past, when no Guidelines on this topic existed.

At the same time, they leave little doubt that the Commission intends to retain an active and interventionist approach to exclusionary conduct, particularly in digital and innovation-driven markets (especially those considered prone to ecosystem effects). They confirm that Article 102 will remain one of the Commission's principal tools for shaping competition in European markets. 

While the Guidelines bind the Commission, they cannot expand companies’ liability. Only EU Courts can ultimately determine what is (not) allowed under Article 102. So, the adoption of these Guidelines does not mark the end of various debates, including the one on exclusionary abuses.