On 3 September 2026, the European Commission (“Commission”) adopted its final Article 102 Guidelines on exclusionary conduct (the “Guidelines”). The Guidelines signal faster, more assertive enforcement, by applying specific analytical frameworks to certain conduct and moving away from lengthy effects-based assessments. Where a framework’s conditions are met, the Commission considers that no separate finding on competition on the merits or exclusionary effects is required. The final Guidelines also reflect changes from the 2024 draft and incorporate recent CJEU case law.
Greater reliance on factual presumptions and limited use of the as-efficient-competitor (“AEC”) test outside pricing abuses increase enforcement risk and reduce the scope for case-specific effects arguments. The final Guidelines clarify objective justifications and efficiencies, but the evidentiary bar remains high. Controversially, the final Guidelines add a sustainability defence, recognising for the first time that sustainability benefits can qualify as efficiencies under Article 102 TFEU, including through “out-of-market” efficiencies where collective benefits extend beyond the relevant market.
Whether this approach will withstand review by the EU Courts remains to be seen. The European Court of Justice has previously endorsed an economics-based effects analysis in exclusionary-conduct cases.
What has changed from the draft to final Guidelines
The draft guidelines published in the summer of 2024 codified the Commission’s interpretation of the EU Courts’ case law on exclusionary abuses but were criticized for leaving the Commission significant discretion and offering limited practical guidance to dominant companies. The final Guidelines take a more pragmatic approach, reflecting EU case law and the Commission’s enforcement practice. The key changes from the draft to the final Guidelines are summarised below.
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Topic |
The Guidelines |
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Dominance |
Market shares: above 50% is evidence of dominance; below 40% generally makes dominance unlikely. Digital ecosystems: dominance may be found at lower market shares in fast-moving markets with network effects and digital “ecosystems of interlinked products, services or platforms,” where barriers to entry and expansion may be high. Barriers to entry and expansion: the final text adds talent recruitment and retention, and capital strength, including the ability to acquire competitors and innovators. Data-driven advantages: the Commission links these advantages to AI and emphasises access to large, high-quality datasets and sufficient computational power. Aftermarkets: new guidance on traditional and digital aftermarkets, with a four-condition test for when primary-market competition constrains the aftermarket: (i) customers can make an informed choice taking into account lifecycle pricing; (ii) customers are likely to do so; (iii) a sufficient number would adapt their primary-market purchasing in response to significant price increases in the aftermarket; and (iv) they would do so within a reasonable time. If any condition is not met, the primary market does not discipline aftermarket power. Collective dominance: distinguish collective dominance based on links from tacit coordination, including coordination facilitated by algorithms. |
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Legal Standard and Two-Step Test |
Three routes to finding a distortion of competition: the two-step test (i.e., conduct must depart from competition on the merits and be capable of producing exclusionary effects) is retained conceptually, but distortion may be established through specific analytical frameworks, exclusion of a hypothetical equally efficient competitor, or conduct harmful to competition by its very nature, without carrying out the two-limb analysis. Sliding-scale evidentiary framework: the final Guidelines replace the draft’s rigid three-tier categorisation of evidentiary burdens with a sliding-scale principle: “the more a given conduct is considered generally likely to distort effective competition, the less case-specific evidence is required to prove that this is the case, and the other way around”. The concept of presumptions is retained but is no longer a standalone evidentiary category; presumptions now operate within the sliding-scale framework, with their strength and scope varying depending on the analytical framework applied. Theory of harm and causation: the final Guidelines require an explanation of how the conduct may harm consumers and provide that its effects must be attributable to the conduct, though it need not be the sole cause. The Commission may rely on a range of evidence and is not required to establish a counterfactual analysis in every case. Low threshold: no actual harm, profitability, de minimis threshold or market-wide impact need be shown to establish that conduct is capable of producing exclusionary effects. |
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Specific Analytical Frameworks |
Revised approach to analytical frameworks: the final Guidelines replace the draft’s binary distinction between conduct with and without specific legal tests with eight defined frameworks in a new order described below. Five conduct types with specific analytical frameworks: predatory pricing, margin squeeze, exclusive dealing (including exclusivity rebates), tying and bundling, and refusal to supply. Where the conditions of the applicable framework are met, the conduct is deemed to distort effective competition without a separate two-limb analysis. Three conduct types assessed under general principles with tailored guidance: conditional rebates not linked to exclusivity, self-preferencing, and access restrictions. For these, the Commission applies the general framework, with specific guidance on relevant factors based on EU case law. Conduct by its very nature harmful to competition: the Guidelines identify examples of conduct that is by its nature abusive, for instance because it has no economic interest for the dominant firm other than that of restricting competition. Examples include payments by the dominant firm to customers that are conditional upon the customers not selling products offered by a specific competitor; swapping competitor products under threat, and dismantling competitor infrastructure. Streamlined assessment: satisfying the applicable framework establishes a distortion of effective competition without a separate effects analysis. The Guidelines recognise that the EU Courts have not required evidence that a hypothetical equally efficient competitor would be excluded. |
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AEC Test |
The as-efficient-competitor (“AEC”) test applies mainly to pricing abuses—predatory pricing, margin squeeze and conditional rebates. Multi-faceted conduct (mixing pricing and non-pricing behaviors) is assessed case-by-case; where AEC analysis establishes exclusion of a hypothetical equally efficient competitor, no separate analysis of departure from competition on the merits is required. |
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Efficiencies Claims and Objective Justification |
Five dedicated sub-sections and sliding scale: the final Guidelines organise the efficiency defence into five sub-sections and assess its four cumulative conditions on a sliding scale: the higher the potential harm to competition, the less likely the conditions are to be met. The dominant firm must provide convincing, objective and verifiable evidence that the conduct produces efficiencies, benefits consumers, is indispensable and does not eliminate effective competition. The final Guidelines recognise new grounds for objective necessity, including EU resilience considerations such as reducing supply chain dependencies and ensuring sufficient production capacity for the EU’s security and defence industry. Sustainability defence: the final Guidelines add sustainability benefits as a distinct form of efficiency defence, citing examples such as less polluting production technologies, increased recyclability and more sustainable products. Where benefits fall outside the relevant market, they may still count provided affected consumers substantially overlap with beneficiaries. Out-of-market efficiencies: benefits on related markets may be considered where consumers affected by the conduct substantially overlap with beneficiaries, but the firm must show that the benefits to affected consumers outweigh the harm. Indispensability and investment recoupment: conduct must be necessary because its efficiencies cannot be achieved to a similar extent through less restrictive alternatives; proportionate restrictions may be justified to recoup substantial sunk investments. No elimination of effective competition: the defence fails if the conduct removes all or most existing sources of actual or potential competition. |
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Digital Markets and Self-preferencing |
The final Guidelines expand the self-preferencing section and distinguish “offensive leveraging” (strengthening the dominant firm’s position in the leveraged market) from “defensive leveraging” (protecting the dominant position in the leveraging market). Access and neutrality: self-preferencing is more likely to raise concerns where the dominant firm controls access to the leveraged market or ecosystem or acts contrary to expectations of neutrality or openness. |
Key takeaways
- Digital markets: Digital ecosystems are expressly covered, and the Commission is likely to move faster where precedent exists while developing enforcement practice on access restrictions. The aim of the final Guidelines is to enable the Commission to launch more and faster investigations and to engage in earlier commitment discussions with companies operating large platforms.
- Coordinated EU-wide strategy: the final Guidelines may prompt national competition authorities to adapt their frameworks, making Member States more active forums for exclusionary‑conduct complaints and increasing the need for coordinated EU‑wide compliance and litigation strategies.
- Increased enforcement risk: the specific analytical frameworks permit findings of abuse without a separate effects analysis, increasing risk for dominant firms, particularly in fast-moving sectors with strong network effects and ecosystems. Dominant firms should consider:
i. Integrating the Guidelines’ analytical frameworks into day‑to‑day product, contracting and go‑to‑market decisions, with particular scrutiny of exclusivity, rebates and product ties or bundles.
ii. Providing cross-functional training for product and commercial teams and, in technology or regulated industries, developing escalation protocols for access restrictions and interoperability changes likely to attract scrutiny.
iii. In technology businesses, closely screening interoperability decisions and maintaining an access playbook for third‑party requests.
iv. Maintaining ordinary-course records of the business rationale, proportionality and less‑restrictive alternatives for conduct covered by the Guidelines, since faster enforcement may leave less time to substantiate objective justifications and efficiency defences.
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