New European Commission Guidelines on Exclusionary Abuses of Dominance (article 102 TFEU)

The Commission has replaced its 2008 Guidance with a new framework that includes, among other things, a 40% market-share safe harbor and a new avenue for justifying exclusionary conduct on sustainability grounds.

The new Guidelines are likely to have a significant practical impact on businesses with substantial market power. Rather than providing a single test that can be applied across all forms of exclusionary conduct, they introduce a more structured, practice-specific framework for assessing potentially abusive behaviour. This makes early competition law assessment increasingly important when designing or implementing commercial strategies.

For businesses operating in markets where competition law risks may be particularly sensitive, obtaining advice at the planning stage can help identify potential concerns early, assess available justifications and efficiencies and ensure that commercial strategies are supported by appropriate legal and evidential documentation.

Read the key points in our Newsflash.