The European Commission has today adopted Guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union ('TFEU') to abusive exclusionary conduct by dominant companies. The adoption of the guidelines marks the end of a three-year process in which the Commission consulted extensively with stakeholders.
Article 102 TFEU prohibits dominant companies from engaging in abusive behaviour, including by seeking to exclude competitors from the market. Examples of such exclusionary abuses of dominance include predatory pricing, margin squeeze, exclusive dealing and refusal to supply. Exclusionary conduct by dominant companies is harmful as it deprives rivals of a fair chance to compete in the market. This, in turn, weakens innovation and other market dynamics, and reduces consumer choice. For those reasons, the Commission and national competition authorities in the EU ('NCAs') act forcefully to investigate and sanction exclusionary abuses of dominance. The enforcement of Article 102 TFEU in the area of exclusionary abuses is indeed key to ensuring effective competition, so that all businesses get a fair chance to compete and consumers can reap the benefits of competitive markets.
Today's guidelines provide for a modern and economically sound framework, which is based on the case law of the EU Courts and seeks to tackle exclusionary abuses effectively.
The Objectives of the Guidelines
By setting out, in a systematic way, how the Commission interprets and intends to apply Article 102 TFEU to exclusionary abuses, today's guidelines:
- Contribute to the modernisation of EU competition policy and ensure that Article 102 TFEU can effectively address modern business realities;
- Enhance legal certainty, facilitating compliance and enabling businesses to compete on the merits; and
- Increase consistency in the enforcement of Article 102 TFEU, including by NCAs and national courts, which can use the guidelines as a point of reference.
Key elements
The Guidelines are based on the EU Courts' case law and the Commission's experience and practice on various key issues concerning exclusionary abuses by dominant operators. They:
- Will help companies assess whether they, alone or together with other companies, hold a dominant position in one or more markets, including where ecosystems and after-markets are concerned;
- Give guidance on the criteria to take into account when establishing whether conduct departs from competition on the merits and leads to exclusionary effects;
- Set out the framework for analysing specific types of conduct by dominant companies; and
- Clarify how companies may justify their conduct by showing that it is objectively necessary or that it creates efficiencies which outweigh any negative effects and ultimately benefit consumers.
Background
Article 102 TFEU prohibits the abuse of a dominant position that may affect trade within the EU. It is enforced by the Commission and the NCAs, and the procedural rules concerning its application by the Commission are set out in the Antitrust Regulation .
In March 2023, the Commission launched a Call for evidence seeking feedback on the adoption of Guidelines on exclusionary abuses of dominance.
Since then, the Commission has organised several engagement initiatives promoting the debate on the key topics of the guidelines and seeking input from different relevant stakeholders. This included a public consultation on a draft of the guidelines' text in August 2024 and a stakeholder workshop in February 2025. Throughout the process, the Commission has also closely cooperated with Member States and NCAs. The input received from all stakeholders have fed into the drafting of the guidelines published today.
While today's guidelines concern the application of Article 102 TFEU to exclusionary conduct, the Commission will continue pursuing exploitative abuses where appropriate and may provide guidance on that type of conduct at a later stage.
With the publication of the Guidelines, the Commission withdraws the 2008 Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty [now Article 102 TFEU] to abusive exclusionary conduct by dominant undertakings , as amended in 2023. The 2008 Communication contributed to promoting an effects-based approach, which has since then been enshrined in the case law of the EU Courts, as reflected in today's guidelines.
