European Commission publishes new guidelines on abuse of dominance

14 September 2026

Article 102 TFEU prohibits dominant undertakings from abusing their market position. Despite being central to EU competition law, this provision lacked official guidance – until now. On 3 September 2026, the European Commission (Commission) published its Guidelines on the application of Article 102 TFEU (the Guidelines), setting out how it will assess exclusionary conduct by dominant companies. The Guidelines offer both risks and opportunities for companies: dominant undertakings can better self-assess their legal position, while their competitors can more easily hold them accountable in court. This update summarises the key changes and their practical implications for businesses.

Key contacts

Yvo de Vries
Yvo de Vries
Attorney-at-law | Partner
Gerrit Oosterhuis
Gerrit Oosterhuis
Attorney-at-law | Partner

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Key takeaways

  • The Guidelines establish a general framework for assessing when conduct by a dominant undertaking amounts to an “abuse”.
  • Certain conduct is deemed inherently abusive, requiring no detailed economic analysis.
  • Dominant undertakings have greater scope to justify their conduct through efficiency or public interest defences.

A general framework for assessing abuse

The Guidelines set out a two-limb test for abuse. To establish a breach, the Commission must prove that the conduct: departs from “competition on the merits”; and is capable of producing exclusionary effects. Although the Guidelines give a broad definition of what “competition on the merits” entails, the focus is on identifying conduct that falls outside it. Examples include providing misleading information on competing products or giving more favourable treatment to the dominant company’s own products (self-preferencing).

To establish exclusionary effects, the Commission must show that the conduct is capable of hindering the normal competitive process. The analytical approach varies depending on the type of conduct. For pricing conduct, the test is whether the conduct could exclude a hypothetical competitor that is as efficient as the dominant undertaking. For non-pricing conduct, no such “as efficient competitor” analysis is required. A distinction recently endorsed by the Court of Justice (see our earlier publication).

Conduct “by its very nature harmful to competition”

Whilst the Commission must generally examine a dominant undertaking’s conduct in detail, the Guidelines carve out an exception: conduct that is “by its very nature” harmful to competition. This category, which replaces the term “naked restrictions” used in the draft Guidelines, covers conduct with no economic rationale other than restricting competition. An example is paying customers not to sell, or to delay selling, a competitor’s products. The Guidelines make clear that attempts to defend such conduct will only very rarely succeed.

Expanded framework for objective justifications

A dominant undertaking may justify its conduct if it produces efficiency gains or serves public interest objectives. The final Guidelines significantly expand this defence framework – devoting some 45 paragraphs to a topic the draft version of the Guidelines addressed in just a few. Notably, the Guidelines now recognise that conduct may be justified where it delivers sustainability benefits or strengthens the EU’s resilience.

Practical implications

The Guidelines will shape how the Commission and national competition authorities enforce rules against exclusionary abuses – conduct that drives competitors from the market. This may prove only a first step: the Commission has indicated that guidance on exploitative abuses (conduct harming consumers or trading partners directly through unfair terms or prices) may follow. For now, businesses should review their commercial practices against the new framework as, for dominant undertakings, the expanded justification framework opens new avenues to defend legitimate business practices. Whilst for competitors, the Guidelines offer a clearer basis to identify and challenge conduct that crosses the line.