Overview
To paraphrase the Evil Queen: "Mirror, mirror on the wall, who is the most dominant of them all?" For companies wondering whether Article 102 of the Treaty on the Functioning of the European Union (TFEU) may apply to them – and, if so, how their commercial conduct will be assessed – the European Commission's new Guidelines offer a timely mirror. They provide a framework against which businesses can reflect on their market position, their conduct and the evidence that may matter if that conduct comes under scrutiny.
On September 3, 2026, the European Commission adopted its long-awaited Guidelines on exclusionary abuses of dominance under Article 102 TFEU. The Guidelines consolidate a substantial body of EU case law and Commission enforcement practice into a single framework and replace the 2009 Enforcement Priorities Guidance. The Guidelines provide companies with a useful roadmap for assessing and substantiating the absence of dominance where their market position comes under scrutiny. This may be particularly relevant in the context of strategic business decisions, such as acquisitions or partnerships, that affect a company's market position and may subsequently raise questions as to whether it holds a dominant position.
The adoption of the Guidelines comes at a time when competitiveness, simplification and the functioning of the Single Market are at the forefront of the EU policy agenda. In her 2026 State of the Union address, Commission President Ursula von der Leyen reiterated the ambition to build an economy in which companies can compete, innovate and grow across Europe. Interestingly, the Guidelines themselves place Article 102 enforcement within a similarly broad economic context. The Commission emphasizes that effective competition keeps markets open and dynamic, enables start-ups and small and medium-sized enterprises (SMEs) to challenge established players, spurs innovation and contributes to sustainable development, resilient supply chains and the EU's long-term prosperity.
At the same time, the Commission points to growing market concentration, digitalization, network effects and "winner-takes-all" dynamics as reasons why vigorous and effective enforcement of Article 102 remains necessary. The challenge is therefore one of balance: ensuring effective enforcement against exclusionary conduct while providing sufficient predictability and transparency for companies to operate and compete freely within the Single Market.
From Enforcement Priorities to a Framework for Self-Assessment
The significance of the Guidelines lies not simply in bringing together the Commission's approach to dominance and the different categories of exclusionary conduct. The Commission expressly presents them as a means of enhancing legal certainty and helping companies self-assess whether their conduct may constitute an exclusionary abuse. While the Guidelines are not legally binding on undertakings or the EU Courts, they constitute rules of practice through which the Commission limits the exercise of its own discretion.
A central feature of the framework is the relationship between the categorization of conduct, departure from competition on the merits, capability to produce exclusionary effects and the applicable evidentiary requirements. Rather than applying a uniform effects analysis to every type of conduct, the Guidelines expressly distinguish between different forms of behavior and the corresponding analytical pathways.
The characterization of a dominant company's conduct may therefore have significant practical consequences. Depending on the practice concerned, the Commission may need to demonstrate its capability to produce exclusionary effects, while other forms of conduct are subject to different evidentiary approaches. Exclusive dealing provides a useful example: once conduct qualifies as an exclusivity obligation, it is presumed to distort effective competition, subject to the dominant undertaking's ability to rebut that presumption. If the conduct does not qualify as exclusive dealing, however, the Commission may instead need to assess its capability to produce exclusionary effects under the general framework (paras. 155-157). For businesses, the relevant question is therefore not simply whether a commercial strategy may adversely affect competitors, but how that strategy is likely to be treated under Article 102, which analytical framework follows from that classification and what evidence will be relevant to the assessment.
Dominance in Evolving Markets
The Guidelines also provide useful indications of how the Commission approaches dominance in increasingly complex and rapidly evolving markets, including digital platforms and ecosystems, AI and other data-driven markets, and technology-intensive sectors marked by short innovation cycles. But what companies see in the mirror cannot be reduced to market share alone. Market shares remain an important starting point – but only a starting point. A market share of 50% or more over a sustained period is, save in exceptional circumstances, evidence of dominance, while the Commission considers dominance generally unlikely below 40%. However, the latter does not operate as a safe harbor: dominance may still arise below that level, for example where customers are particularly dependent on the undertaking or competitors face serious capacity constraints.
More importantly, the assessment extends beyond market shares. The Guidelines identify barriers to entry or expansion ranging from regulatory requirements, intellectual property rights and economies of scale to data advantages, network effects, switching costs and customer lock-in. In AI markets, access to large, high-quality datasets and computational power may be particularly relevant. The Guidelines also address dominance in after-markets, where dependence on related secondary products or services may limit competitive constraints. After-markets in the context of dominance have usually raised exclusionary issues such as tying. The classic cases involved printer inks or network codes encrypted to impede interoperability. The Commission helpfully outlines four cumulative tests for determining if the primary and secondary markets are interdependent:
- Can customers make informed choices amongst the primary product suppliers?
- Do they in fact do this?
- If a primary product supplier pursued exclusionary conduct in the secondary market, would a sufficient number of customers switch primary product purchasing behavior?
- Would customer switch within a reasonable period of time?
For businesses operating in such markets, an assessment based principally on historical market shares may therefore not fully capture the competitive significance of data, infrastructure, ecosystems and other strategic assets that affect rivals' ability to enter or expand.
What Does this Mean in Practice for Businesses?
For companies that hold, or may hold, dominant positions, the Guidelines provide an opportunity to revisit how Article 102 risk is incorporated into commercial decision-making. In this respect, the Guidelines provide companies with a clearer mirror through which to examine not only their market position, but also how a proposed commercial strategy may be viewed under Article 102. Before implementing potentially exclusionary strategies, businesses should consider not only their position in the relevant market but also the nature of the proposed conduct, the legal framework under which it is likely to be assessed and the evidence available to explain its commercial rationale and likely competitive effects.
The Guidelines are also relevant for companies seeking to raise concerns about potentially exclusionary conduct by a dominant undertaking. By clarifying the analytical framework applicable to different types of conduct, they can help complainants structure their allegations, identify the evidence relevant to demonstrating potential exclusionary effects and assess whether the conduct is likely to warrant scrutiny under Article 102. For example, in assessing whether conduct departs from competition on the merits, the Guidelines identify a range of relevant factors, including restrictions on customer choice, discriminatory treatment favoring the dominant undertaking and evidence of an intention to restrict competition. This may help complainants identify the types of facts and evidence relevant to substantiating their concerns (paras. 74-78).
There may be no magic formula for navigating Article 102 scrutiny, but timely documentation can help ensure that the evidence tells the right story. Internal strategy documents, pricing analyses and communications may subsequently become important evidence in assessing the nature and effects of conduct. Where a potentially sensitive strategy has legitimate commercial justifications or generates efficiencies, identifying and substantiating those considerations when the strategy is designed may be considerably easier than reconstructing the reasoning once an investigation has begun. If the company is planning a key strategic move, it may also be prudent to engage economic support which can document, in advance, either the absence of dominance, or the presence of countervailing competitive pressures.
The Guidelines are relevant beyond sectors traditionally associated with competition enforcement. In particular, compliance with another EU or national regulatory regime does not in itself preclude scrutiny under Article 102. This is particularly relevant in digital and other heavily regulated sectors, where competition law may operate alongside instruments such as the Digital Markets Act or sector-specific regulation. For companies that may hold a dominant position, regulatory compliance should therefore not automatically be treated as sufficient from an Article 102 perspective, and a separate competition-law assessment may be warranted where commercially significant conduct raises potential exclusionary concerns.
Another noteworthy aspect is the express recognition of sustainability benefits as potential efficiencies under Article 102. These may include the use of less polluting technologies, increased recyclability, more resilient infrastructure or the development of more sustainable products. Such benefits do not, however, provide a standalone defence: where conduct distorts competition, the dominant undertaking must substantiate the claimed efficiencies and demonstrate that they satisfy the conditions of the efficiency defence.
The practical implication is not that every decision taken by a dominant company requires a formal Article 102 assessment. Rather, where a proposed commercial strategy raises a material competition-law risk, the new framework reinforces the value of assessing the relevant market position, legal characterization, potential competitive effects and supporting evidence at an early stage.
Conclusion: Greater Clarity, but Not Necessarily Simplicity
The new mirror may therefore be clearer, but the reflection is not always simple. The Guidelines provide a more structured framework for navigating Article 102, but greater clarity does not necessarily mean a simpler assessment. The analysis remains highly fact- and context-specific, and the Guidelines themselves acknowledge that they cannot exhaustively address all possible forms of abusive conduct. In practice, companies will still need to determine how particular conduct should be characterized, which analytical framework applies and what evidence is relevant, questions that may be particularly challenging for novel or multi-faceted commercial strategies.
Moreover, while the Guidelines largely reflect existing EU case law, they also set out the Commission's position on certain questions that have not yet been addressed by the EU Courts or remain open to interpretation. Their practical significance will therefore continue to evolve through future enforcement and litigation. For businesses, the Guidelines are thus not only an enforcement framework, but also a useful tool for anticipating Article 102 risks and incorporating them into commercial decision-making.
