The Commission adopts EU Guidelines on abusive exclusionary conduct by dominant undertakings

The European Commission has 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 undertakings. The adoption of these Guidelines marks the end of a three-year process during which the Commission held extensive consultations with interested parties.

Article 102 TFEU prohibits dominant undertakings from engaging in abusive conduct, such as seeking to exclude competitors from the market. Examples of abusive exclusionary conduct by dominant undertakings include predatory pricing, margin squeeze, exclusive agreements and refusal to supply. Such conduct is harmful, as it deprives rivals of fair opportunities to compete in the market, which in turn undermines innovation and other market dynamics and reduces consumer choice. For these reasons, the Commission and the EU’s national competition authorities (‘NCAs’) take vigorous action to investigate and sanction abusive exclusionary conduct by dominant undertakings. The application of Article 102 TFEU in the context of such exclusionary conduct is absolutely essential to ensuring effective competition, so that all undertakings have a level playing field to compete and consumers can reap the benefits of competitive markets.

The Guidelines set out a modern and economically sound framework, based on the case law of the EU courts, which aims to effectively combat abusive exclusionary conduct by dominant undertakings.

Objectives of the Guidelines

By setting out, in a systematic manner, how the Commission interprets and intends to apply Article 102 of the TFEU to abusive exclusionary conduct, the Guidelines:

• Contribute to the modernisation of EU competition policy and ensure that Article 102 TFEU can effectively address modern business realities.
• Enhance legal certaintyby facilitating compliance and enabling businesses to compete on the basis of their merits.
• Improve consistencyin the application of Article 102 TFEU, including by national competition authorities (NCAs) and national courts, which may use the Guidelines as a reference.

Key elements

The Guidelines are based on the case law of the EU courts and on the Commission’s experience and practice regarding various key issues relating to abusive exclusionary conduct by dominant undertakings. The Guidelines:

• Will help undertakings to assess whether they, alone or together with other undertakings, hold adominant position in one or more markets, including ecosystems and after-market sectors.
• Provide guidance on the criteria to be taken into account when determining whether conduct deviates from competition on its merits and gives rise to exclusionary effects.
• Will establish the necessary framework for analysing specific types of conduct by dominant firms.
• They will clarify how undertakings might justify their conduct by demonstrating that it is objectively necessary or that it delivers efficiencies which offset any negative effects and, ultimately, benefit consumers.

Background

Article 102 of the TFEU prohibits the abuse of a dominant position that may affect trade within the EU. It is enforced by the Commission and the national competition authorities, and the procedural rules governing its application by the Commission are set out in the Competition Regulation.

In March 2023, the Commission launched a call for evidence to gather information on the adoption of Guidelines on abusive exclusionary conduct by dominant undertakings.

As part of this process, the Commission has organised several engagement initiatives to foster debate on the main topics covered by the Guidelines and to gather comments from the various relevant stakeholders, including a public consultation on a draft text of the Guidelines in August 2024 and a stakeholder workshop in February 2025. Throughout the process, the Commission has also cooperated closely with the Member States and the NCAs. The contributions received from all stakeholders have been taken into account in the drafting of the Guidelines.

Whilst these Guidelines concern the application of Article 102 TFEU to exclusionary conduct, the Commission will continue to address exploitative practices where appropriate and may provide guidance on such practices at a later stage.

With the publication of the Guidelines, the Commission withdraws the 2008 Guidance on the Commission’s enforcement priorities in the application of Article 82 of the EC Treaty [now Article 102 TFEU] to abusive exclusionary conduct by dominant undertakings, published in 2008 and amended in 2023. The 2008 Communication helped to promote an effects-based approach, which has since been enshrined in the case law of the EU courts, as set out in the Guidelines.

Further information is available on the page concerning the application of Article 102 TFEU on the Commission’s competition website, including summaries of the various consultation activities and comments from interested parties.

 

More information: European Commission