The European Commission adopted new guidelines on 3 September 2026 to clarify enforcement of Article 102 TFEU, replacing the 2008 Guidance Paper and marking a shift from economic to legalistic approaches while softening some 2024 draft provisions.
The European Commission finalized its long-anticipated Guidelines on Exclusionary Abuses under Article 102 TFEU on 3 September 2026, replacing the 2008 Guidance Paper that had shaped enforcement priorities for nearly two decades. The new rules, developed after a two-year consultation, reflect a recalibration of the Commission’s approach, moving away from the more economic approach
of the 2008 paper while retaining some legalistic elements from the 2024 draft. The guidelines will take effect 30 days after their official publication on 9 September 2026, with the 2008 paper being withdrawn by 10 October 2026.
A Shift from Economic to Legalistic Enforcement
The guidelines mark a departure from the 2008 Guidance Paper’s emphasis on anti-competitive foreclosure
and consumer harm, which prioritized economic analysis. Instead, the Commission now adopts a more legalistic framework, introducing categorizations and presumptions based on conduct type. However, the final version softens some of the 2024 draft’s more stringent provisions, including the as-efficient competitor
(AEC) test for pricing conduct and the presumption of exclusionary effects in five categories of practices, such as predatory pricing and exclusive dealing.
While the 2008 Guidance Paper was only intended to set out enforcement priorities, it proved influential and was later endorsed by the EU Courts for the most part,
one source noted. The Commission’s 2024 draft had sought to reverse this economic focus, but stakeholders criticized its reliance on form-based presumptions. The final guidelines instead reintroduce a soft safe harbor,
stating that companies with market shares below 40% are generally unlikely
to be deemed dominant, though dominance can still be found in exceptional cases.
Digital Ecosystems and Aftermarkets: New Challenges
The guidelines address the unique challenges of digital markets, where network effects, data-driven advantages, and winner-takes-all
dynamics can entrench dominance. They clarify that the as-efficient competitor
principle may not apply in digital ecosystems, where factors like innovation and user behavior play a decisive role.
The concept of a hypothetical equally efficient competitor may not be relevant in digital markets and ecosystems, where features such as innovation, access to data, multi-sidedness, user behaviour or network effects play a decisive role,
one source explained. The guidelines also warn that collective dominance—where multiple entities act in concert—could still warrant enforcement, particularly through algorithmic coordination, despite rare historical applications.
Key Changes from the 2024 Draft
The final guidelines diverge from the 2024 draft in several key areas. While the draft proposed a strict presumption of exclusionary effects for practices like exclusive dealing and margin squeeze, the final version allows for rebuttals, shifting the burden of proof to dominant firms. The guidelines also reflect a shift in approach following the consultation on the 2024 draft.
The final Guidelines will apply as of 30 days after their publication in the Official Journal on 9 September 2026,
a source stated. The Commission also clarified that enforcement may still be warranted in certain situations,
such as when algorithms enable tacit collusion. The guidelines now emphasize a two-pronged test for exclusionary abuse: (1) whether conduct departs from competition on the merits and (2) whether it is capable of having exclusionary effects.
Implications for Businesses and Legal Strategy
The guidelines provide businesses with a clearer framework for assessing compliance but retain significant discretion for the Commission. Companies must now navigate a hybrid approach that balances economic analysis with legalistic presumptions. The guidelines also highlight the importance of objective justifications, requiring dominant firms to demonstrate objective justifications on which an undertaking may rely when its conduct is considered prima facie to fulfil the criteria of exclusionary abuse.
For businesses, Article 102 compliance remains highly fact-specific,
one source observed. The guidelines stress that the key question is not whether conduct has effects in the abstract, but which legal framework applies and what evidence will matter within it. This shift underscores the need for companies to closely monitor enforcement trends and adapt their strategies to the evolving regulatory landscape.
The 2008 Guidance Paper will be withdrawn on 10 October 2026, marking the formal end of its influence. The new guidelines, however, will face scrutiny as companies and legal experts interpret their application. Key questions remain about how the Commission will enforce the soft safe harbor
in digital markets and whether the two-pronged test for exclusionary abuse will lead to more or fewer investigations. The next major date to watch is 10 October 2026, when the 2008 Guidance Paper will be withdrawn, and stakeholders prepare for potential shifts in enforcement priorities.
