Brussels Closes A Three-Year Rewrite
On September 3, 2026, the European Commission formally adopted its first EU-wide guidelines on what counts as abusive exclusionary conduct under Article 102 of the EU treaty, closing a three-year process that began with a far more aggressive draft in August 2024.
The new text withdraws the Commission's 2008 enforcement-priorities guidance outright, replacing seventeen years of case-by-case interpretation with one consolidated framework covering how dominance gets assessed, what counts as competing on the merits, and when conduct crosses into exclusionary abuse.
The final version reads noticeably softer than the 2024 draft. Officials pared back several categories of conduct that would have been presumed exclusionary by default, after consultation with companies, competition lawyers, and academics who argued the draft went too far. Competition Commissioner Teresa Ribera said the guidelines are meant to "provide clarity and predictability on the limits of the law for companies operating in Europe."
The Resilience Defense, Explained
The guidelines give dominant companies a formal way to defend conduct that would otherwise look like abuse, including cases resembling overpricing, by showing the behavior serves a recognized public interest rather than just their own bottom line.
Four conditions now have to hold together for that defense to work: the conduct must produce real efficiencies, actually counteract the harm being alleged, be necessary to achieve that goal, and stop short of eliminating effective competition. Within that frame, a company can point to supply-chain resilience against external shocks, public health, product safety, or the EU's own sustainability objectives as the public interest being served.
The guidelines also mark roughly 40 percent market share as a soft line below which the Commission generally does not expect to find dominance at all, giving mid-size firms a clearer sense of when this whole framework even applies to them.
Who This Actually Changes Things For
This is not a Big Tech carve-out. Any company crossing the dominance threshold in an EU market now falls under the same framework, including the larger "national champions" the EU has been actively encouraging through a separate relaxation of merger rules earlier in 2026.
| Version | Adopted | Exclusionary-effect presumptions | Market-share signal |
|---|---|---|---|
| 2008 enforcement guidance | 2008, amended 2023 | Case-by-case, no consolidated framework | No fixed reference point |
| 2024 draft guidelines | August 2024 | Broad, several conduct types presumed abusive | Not specified |
| 2026 final guidelines | September 3, 2026 | Narrowed, more conduct requires proof of intent or effect | Roughly 40 percent soft safe harbor |
National courts are not bound by Commission guidelines the way the Commission itself is, but they routinely look to them for guidance, so the practical reach of this framework extends well past Brussels' own case files. For a company operating across several EU states, one legal standard just replaced years of case-by-case guesswork, for better or worse depending on which side of a dominance claim it sits on.
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