The EU’s Guidelines on Abusive Exclusionary Conduct

On 3 September 2026, the European Commission issued guidelines¹ on how exclusionary conduct by dominant firms is assessed under EU competition law.²

The guidelines were adopted following a three-year review process³ and are the first of their kind. Prior to this, the guidance available to dominant firms came in the form of Commission decisions, case law of the European Courts and a 2008 Commission guidance paper on its “enforcement priorities”⁴. The result was a hotchpotch of how EU competition law looks at exclusionary abuses, with the Commission’s decisional practice evolving towards a greater emphasis on an economics-based approach and the European Union Courts historically taking a more form-based approach. The guidelines, which replace the 2008 paper⁵, are an attempt to codify the case law and outline the situations where presumptions will apply and others where no presumptions exist and effects-based thinking will lead.

We set out below an overview of the guidelines, touching on the concept of dominance, the Commission’s approach to exclusionary abuses of dominance, and the objective justifications that can be deployed to defend against the finding of an infringement. We also discuss the enforcement actions that the Commission can take to find an abuse of dominance, and the consequences of such a finding.

The Concept of Dominance

The existence of a dominant position is crucial for the regime to apply, but being dominant is not illegal in itself; firms that are dominant are held to a higher standard of conduct under EU law not to engage in abusive conduct, i.e. conduct that distorts effective competition and/or harms consumers. While the concept of dominance is linked to market power, EU law does not require a firm to be a monopolist. Rather, to establish dominance, the Commission needs to show that the firm enjoys a position of economic strength that allows it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers, and ultimately its consumers.⁶ The exercise therefore typically requires the identification of the relevant market and the market position of the firm in question. In this regard, the market share held by a firm is an important factor.⁷ Dominance is generally unlikely where a firm has less than 40% market share⁸, while market shares of 50% and above may be evidence in themselves of a dominant position.

Dominance can be held by single firms or by two or more firms, i.e. there can be situations of single dominance or collective dominance respectively. The Commission’s guidance on the notion of collective dominance is worth particular attention. While the concept is not new (collective dominance arises where multiple firms present themselves as a collective entity), the guidelines state that this can be a result of formal structural links between firms (e.g. interlocking directorships), or as a result of tacit collusion. In particular, the Commission notes a correlation between the increasing use of algorithms and the potential for more findings of collective dominance based on tacit collusion; algorithms can facilitate coordination by aiding firms to reach the terms of coordination and to monitor the terms of coordination by increasing transparency.

Establishing Abuse: the Distortion of Effective Competition

While there is no conclusive list of what is considered to be abusive conduct, two general categories of abuses have developed through case law: exclusionary abuses (e.g. conduct that is harmful to normal competition or the normal competitive process on a given market) or exploitative abuses (including conduct that is directly harmful to consumers such as price-gouging). The Commission’s new guidelines set out the framework of assessment for the former category of abuses.⁹

The Commission confirms that the concept of an abuse is an objective one, with the focus of the assessment being whether the conduct distorts effective competition. In general terms, that assessment will primarily look at two factors: (i) whether the conduct of the dominant firm falls outside competition on the merits; and (ii) whether the conduct was capable of having exclusionary effects. With regard to competing on the merits, the notion covers the assessment of whether the dominant firm was acting within the scope of normal competition.¹⁰ With regard to the capability to produce exclusionary effects, the Commission refers to conduct that is capable, on more than just a hypothetical basis, of hindering the normal competitive process, such as the total exclusion or marginalization of competitors, the increase in barriers to entry or expansion, the elimination of market access, or the prevention of growth.¹¹

The guidelines explain that the Commission has the discretion to consider each of these questions in the order and to the extent needed for each specific case at hand. Further, there will be scenarios where the Commission will be able to find an infringement without conducting these analyses at all. In addition to acknowledging the legal frameworks and presumptions already developed by the European Courts, the guidelines notably provide that these analyses are not required in cases involving conduct that is “by its very nature harmful”, i.e. the so-called “naked restrictions”¹², where the behaviour would have been of no economic interest to the dominant firm other than to restrict competition. Conduct falling into this bucket includes, for example, dominant firms paying customers not to use a competitor’s products or where the dominant firm dismantles infrastructure that is relied on by a competitor to compete.

In separate sub-sections, the guidelines set out an overview of the approach of the Commission for specific types of conduct, addressing predatory pricing¹³, margin squeeze¹⁴, non-exclusivity rebates¹⁵, exclusive dealing¹⁶, tying and bundling¹⁷, access restrictions¹⁸, refusal to supply¹⁹, and self-preferencing²⁰. In essence, there will be cases where the Commission will be entitled to presume that a certain form of conduct distorts effective competition (and the firm in question is free to rebut that presumption), and other cases where the Commission will need to establish it. By way of example, in exclusive dealing situations (such as where a dominant firm grants rebates to its customer conditional upon the customer sourcing most or all of its requirements from it), the Commission will presume that there is a distortion of effective competition. The dominant firm can then challenge the existence of exclusive dealing, or rebut the presumption that the conduct distorted effective competition.²¹ A successful challenge to the presumption, however, does not mean that the Commission’s case will be entirely lost. The Commission may still establish the existence of a distortion without relying on the presumption, i.e. by conducting an overall assessment of the facts and circumstances of the case. In contrast, in self-preferencing scenarios (where a dominant firm treats its own products more favourably than those of its competitors), the guidelines set out that there is no general rule that self-preferencing by dominant firms distorts competition. For these types of cases, there is no presumption that the Commission can rely on, and it will consider whether the conduct departs from competition on the merits and is capable of having exclusionary effects.

Objective Justifications

Dominant firms engaging in abusive conduct may escape a finding of an infringement (and thus fines) if the conduct is objectively justified. The guidelines explain that this means that the conduct must be objectively necessary or that there are efficiencies that outweigh the negative effects of the conduct.

The objective necessity defence comprises two limbs. First is the demonstration that the dominant firm was acting in pursuit of a legitimate aim. The Commission offers various examples of the defences in this regard, for instance, the dominant firm may be pursuing a legitimate commercial goal (such as defending itself from unfair customer behaviour), or needing to make technical product improvements, or contributing to a public interest objective. Specifically on public interest, the guidelines offer that contributing to the European Union’s resilience, including in the areas of security and defence, may be valid objective justifications for otherwise sanctionable conduct by a dominant firm. The second limb is the requirement that the dominant firm’s conduct in meeting those legitimate aims was proportionate. This involves a balancing test and the consideration of whether the distortion caused by the conduct is proportionate to the alleged aim, and whether that aim could have been achieved through less harmful options.

With regard to efficiency defences, the guidelines provide that the Commission will consider all forms of efficiencies presented including those that may take more time to materialize, such as increased incentives to innovate. The guidelines also give a nod to sustainability efficiencies being a possible defence, for example, where the conduct enables the production of more sustainable goods. To rely on an efficiency defence, the dominant firm must demonstrate that its conduct allows verifiable efficiencies to be achieved, the efficiencies counteract any negative effects of that conduct on competition and consumers, the conduct is necessary for those efficiencies, and the conduct does not eliminate effective competition.  

Enforcement and Consequences

While the guidelines set out how the Commission will assess exclusionary abuses of dominance, they do not alter the enforcement actions that the Commission can take to investigate and ultimately find the existence of an abuse.

Enforcement cases arise, for example, from the Commission’s own market intelligence activities or, as can be common in cases of exclusionary abuses, active complainants. Where the Commission decides to investigate, it can gather evidence through conducting unannounced inspections at the business premises of firms and sending requests for information to firms, whether in the EU or based elsewhere. These investigations can be long processes that take several years, and involve multiple rounds of questioning.

Where the Commission concludes that there is an abuse of dominance, it can adopt a decision that requires the offending conduct to be brought to an end and impose fines of up to 10% of the dominant firm’s worldwide revenues.  The objective of the Commission’s fining policy is to punish and deter, and so significant fines (running to millions, if not billions of Euros) can be imposed in abuse of dominance cases. It also has the power to impose remedies to restore competition, for example, requiring dominant firms to supply or to license on particular terms. As an alternative to an infringement decision, the Commission also has the power to adopt commitment decisions. In these cases, the Commission sets out its preliminary concerns and the firm offers commitments to address those concerns. If the commitments are deemed to be acceptable by the Commission (following a period of consultation, where third parties may comment on the commitments), the Commission adopts a decision to make the commitments legally binding, without having to conclude on whether an abuse of dominance occurred and without imposing a fine. Decisions adopted by the Commission can be reviewed by the European Courts on appeal.

An adverse decision by the Commission can also result in follow-on litigation brought by competitors or customers before the national EU Member State courts, where claimants will seek to rely on the existence of the infringement outlined in the Commission decision, and seek damages for harm suffered.  

Conclusion

For most firms, the immediate effect of the guidelines will be greater visibility of how the Commission approaches exclusionary abuse cases. For firms with significant market power and that may be potentially dominant, the important message is that the Commission has preserved flexibility in its approach to assessing dominance and abusive conduct. What these cases will boil down to, inevitably, is the evidence. A dominant firm can always defend itself by demonstrating that effective competition is not distorted, or that its conduct is objectively justified, and the guidelines are a reminder that clear, contemporaneous records of a sound rationale behind pricing and commercial decisions are worth the effort.

¹ Https://competition-policy.ec.europa.eu/document/download/ac0e592e-2c8e-4a45-aae5-d82e7327b022_en?filename=Guidelines_on_exclusionary_abuses_of_dominance_102TFEU.pdf.

² While the two systems differ in certain aspects, the EU regime prohibiting abusive exclusionary conduct by dominant firms is conceptually similar to the US rules on monopolization under Section 2 of the Sherman Act.

³ The Commission first launched the process of adopting guidelines on exclusionary abuses of dominance in March 2023. Draft guidelines were published in August 2024. Information about the process for the adoption of the current guidelines can be found on the Commission’s website:  https://competition-policy.ec.europa.eu/antitrust-and-cartels/legislation/application-article-102-tfeu_en.

⁴ In 2008, the Commission adopted its “Guidance on enforcement priorities” in relation to exclusionary conduct by dominant firms. This guidance was not, and was not intended to be, a statement of the law, but rather set out the Commission’s approach as to the types of cases that it would treat as a matter of enforcement priority.

⁵ With the adoption of the new guidelines, the 2008 guidance paper will not apply as of 10 October 2026.

⁶ The Commission states in the guidelines that, while market power may exist in a spectrum, dominance is a binary concept.

⁷ The guidelines also provide that the Commission will consider other factors for establishing dominance, such as the existence of barriers to entry or expansion on a market and countervailing market power. The guidelines do not provide an exhaustive list of the relevant factors, but note that market shares are an “important factor”.

⁸ This is not a strict threshold and the guidelines note that dominance can still be found in cases where firms have less than 40% market share.

⁹ There are no equivalent guidelines from the Commission on abuses of an exploitative nature.

¹⁰ The guidelines note that conduct that has the effect of broadening consumer choice by putting new goods on the market or by increasing the quantity or quality of the goods on offer generally falls within the scope of competition on the merits.

¹¹ The guidelines further explain that, when looking at pricing conduct, the Commission will typically consider whether the conduct was capable of excluding a hypothetically equally efficient competitor, while in non-pricing conduct, the effect of the conduct on a hypothetically equally efficient competitor may not be relevant.

¹² Paragraph 197 of the guidelines and footnote 407, referring to the Court’s terminology in previous cases.

¹³ Section 4.2 of the guidelines. This refers to below-cost pricing aimed at marginalizing competitors or reducing competition.

¹⁴ Section 4.3 of the guidelines. This refers to pricing of an input product by a dominant firm that prevents its competitor on the downstream market from relying on that input to operate profitably on a lasting basis.

¹⁵ Section 4.4 of the guidelines. This refers to rebates and other pricing practices aimed at rewarding certain purchasing behaviour of its customers.

¹⁶ Section 4.5 of the guidelines. This covers exclusivity obligations and exclusivity rebates, i.e. incentive schemes that reward a customer focussing all or almost all of its purchase requirements from the dominant firm.

¹⁷ Section 4.6 of the guidelines. This refers to the practice of requiring or incentivising customers to buy multiple products from the dominant firm, e.g. by tying two separate products or bundling them together.

¹⁸ Section 4.7 of the guidelines. This refers to the situation where a dominant firm restricts a competitor from accessing an input that it controls.

¹⁹ Section 4.8 of the guidelines. This refers to the refusal by a dominant firm to supply an indispensable input.

²⁰ Section 4.9 of the guidelines. This refers to the more favourable treatment by a dominant firm of its own products in a way that distorts effective competition.

²¹ The Commission offers, in paragraph 157, examples of evidence that can be submitted in this regard. This includes that the conduct had limited coverage and short duration such that it was not capable of having exclusionary effects to a competitor.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.